ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  5 August 2019

	DOCKET NUMBER:  AR20180007311


APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* self-authored statement

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states prior to his discharge he repeatedly requested to go to school, but was denied and was told that his military occupational specialty was critical.  He was a cannon crewmember (13B) at the time and there was no war.  

3.  The applicant provides a self-authored statement which describes his difficulty in getting his DD Form 293 into the right hands to begin processing his upgrade request.

4.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 16 August 1976.

	b.  On 22 February 1977, he accepted non-judicial punishment, under the provisions of Article 15, Uniform Code of Military Justice, for departing his unit in an absent without leave (AWOL) status on 25 January 1977 and did not return to military control until        7 February 1977.

	c.  He departed his unit in an AWOL status on 31 May 1977 and was dropped from the rolls on 1 July 1977.
	d.  According to his DD Form 458 (Charge Sheet), dated 16 December 1977, court-martial charges were preferred against him for one specification of going AWOL on     31 May 1977 and did not return to military control until 9 December 1977.

	e.  On 16 December 1977, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under UCMJ, of the possible effects of a bad conduct or dishonorable discharge, if the request is approved and of the procedures and rights available to him.

	f.  Following consultation with counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

	g.  On 21 December 1977, his commander recommended that the applicant be discharged for the good of the service in accordance with AR 635-200, Chapter 10 and be issued an under other than honorable conditions discharge.

	h.  Consistent with the chain of command's recommendation, the separation authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge and a reduction in rank to the lowest enlisted grade prior to separation.

	i.  His DD Form 214 shows he was discharged on 13 January 1978 under the provisions of AR 635-200, Chapter 10 for the good of the service, in lieu of trial by court martial with a characterization of service of under other than honorable conditions.      He completed 10 months and 5 days of total active service with 205 days of lost time.  

5.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

6.  By regulation, a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service 

7.  The Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the short term of honorable service completed prior to a lengthy periods of AWOL, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-200 (Personnel Separations-Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-13a (Honorable) provides that an honorable discharge is a separation with honor.  Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude.

	b.  Paragraph 1-13b (General) states that a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory.  The member may have had frequent non-judicial 
punishments but not for serious infractions. 

	c.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  The provisions of the Table of Maximum Punishments, Section B, paragraph 127c MCM 1969 (Rev) are not applicable to requests for discharge pursuant to this chapter.  The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred.  The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority.

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.
 
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180007311


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