ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  5 August 2019

	DOCKET NUMBER:  AR20180007330


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) – (Honorable and UCOTH)
* 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 he was a headstrong person and only 20 years old and did not realize the consequences of his actions.  

3.  The applicant provides a detailed self-authored statement which is attached describing his current status and work ethic since being discharged.

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

	a.  He enlisted in the Regular Army on 30 January 1969, was honorably discharged on 24 September 1970 and immediately reenlisted on 25 September 1970 for a period of 6 years.

	b.  He served overseas in Korea from 24 June 1969 until 23 July 1970.

	c.  On 15 September 1970, he accepted non-judicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for departing his unit in an absent without leave (AWOL) status on 11 September 1970 and did not return to military control until 12 September 1970.  

	d.  On 13 January 1971, he accepted NJP, under the provisions of Article 15, UCMJ, for failing to go, at the time prescribed, to his appointed place of duty on 11 January 1971.

	e.  On 17 January 1972, he accepted NJP, under the provisions of Article 15, UCMJ,  for departing his unit in an AWOL status on 1 January 1972 and did not return to military control until 14 January 1972.  His punishment included a reduction in rank to private first class/E-3.

	f.  On 28 April 1972, he accepted NJP, under the provisions of Article 15, UCMJ, for departing his unit in an AWOL status on 31 January 1972 and returned on 23 February 1972 and again on 26 February 1972 and remained absent until 7 March 1972.  His punishment included a reduction in rank to Private/E-1.

	g.  His record is void of a DD Form 458 (Charge Sheet).  This form would have indicated the court martial charge(s) and specification(s) which were preferred.  It is also void of a complete separation packet outlining the reason for separation, however, it does include a memorandum dated 28 September 1972, that speaks of an approved recommendation for elimination proceedings, and a DD Form 214 which shows he was AWOL from 4 May 1972 through on or about 12 September 1972.  He was discharged on 5 October 1972, for the good of the service (AR 635-200, chapter 10) and issued an under other than honorable discharge certificate.

	h.  His record also shows he had 1 year, 6 months, and 16 days of active service this period with 178 days of lost time.

	i.  He was awarded or authorized the Letter of Commendation, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), Marksman Marksmanship Badge (Missile), and Expert Marksmanship Qualification Badge (.45 Caliber Pistol)

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, an individual who has committed an offense or offenses, the punishment for 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.  In reaching its determination, 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 multiple lengthy periods of AWOL, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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 Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  
   a.  Paragraph 1-9d 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 of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.

   b.  Paragraph 1-9e provides that a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  When a member’s service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record

	c.  Chapter 10 of that regulation provides, in pertinent part, that an individual who has committed an offense or offenses, the punishment for 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 request for discharge may be submitted at any time after court-martial charges are preferred against him, 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)	 AR20180007330


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