ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20180007674 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Letter of Support X___ X___ * Letter of Support X___ X___ 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, when he was young he did not understand the consequences of his actions, as he and his oldest brother enlisted together. Shortly afterwards, their father passed away leaving his mother to raise 6 kids. His oldest brother was released from the military to help support the family, but had no financial means to do so. He wanted to help his mother and be a good role model for his younger siblings. He states he knows he did not handle leaving the military properly, but he is asking for an upgrade for personal and medical reasons. He is truly sorry for the way he handled it. 3. The applicant provides: a. Letter of Support X___ X___, which states, that the author and the applicant have been married for 37 years, and he always speaks of the way he left the Army. She states that he came from a big family and enlisted with his brother in the Army. His brother was discharged since he was the oldest, but he did not take care of the family as he should have. He took leave to check on his family and found that they were struggling so he stayed to help his now widowed mother with the six kids at home. When he returned to his duty station, he was given the option to finish his time or accept a under other than honorable conditions discharge, and he chose to help his mother and took the discharge. He went home and found employment to help support his mother and siblings. She also states that their son proudly and honorably serve in the Navy for 7 years. He may have went about it the wrong way, but helping his mother was his only focus at the time. b. Letter of Support X___X___, dated 16 March 2018, which states the applicant is like a father, since she has known him since she was two years old. She grew up in their home, and he taught her many things growing up, to include math, riding her bike, and of course life lessons. The applicant is a kind, loving, patient person, and she and her children loved every minute they’ve spent with him. 4. A review of his service records shows: a. He enlisted on 4 December 1974 in to the Regular Army (RA). b. His DA Form 2-1 (Personnel Qualification Record) reflects that he was declared absent without leave (AWOL) on 20 June 1975 and dropped from rolls on 21 July 1975. c. On 11 March 1975, the applicant accepted nonjudicial punishment (NJP) for one specification of AWOL for a period of one day on 3 March 1975. d. On 20 June 1975, his duty status was changed to AWOL, and on 21 July 1975 he was dropped from rolls. His DA Form 3836 (Notice of Return of US Army Member From Unauthorized Absence), reflects he was returned to military control on 5 October 1975. e. His records are void of a DD Form 458 (Charge Sheet), or any separation paperwork. f. On 23 December 1975, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged from active duty under the provisions of chapter 10 (in lieu of trial by court-martial) of Army Regulation (AR) 635-200 (Personnel Separations) with an under other than honorable conditions characterization of service. He completed 1 year, 9 months, and 3 days of active service. He had 107 days lost time from 21 July 1975 to 5 October 1975. He was awarded or authorized: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M16) * National Defense Service Medal 5. The applicant applied to the Army Discharge Review Board (ADRB) on 9 July 1982. His request was denied and the Board determined that he was properly discharged. 6. By regulation (AR 635-200), Soldiers who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court–martial. This do not apply to requests for discharge per this chapter unless the case has been referred to a court–martial authorized to adjudge a punitive discharge. The discharge request may be submitted after court–martial charges are preferred against the Soldier, or, where required, after referral, until final action by the court–martial convening authority 7. By regulation (AR 635-200), a member who requests discharge as prescribed in chapter 10 may be issued an under other than honorable conditions discharge if he or she has been afforded the opportunity to consult with a consulting counsel. The member must certify in writing that he or she, understands that he or she may receive a discharge under other than honorable conditions. The member must understand the adverse nature and possible consequences of such a discharge. The member must personally sign a request for discharge. 8. 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 there is insufficient evidence to grant relief. The applicant’s contentions and letters of support 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 evidence of post-service achievements for the Board to consider. Based upon the record, 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c (Under Other than Honorable Conditions), a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or for the good of service. d. Chapter 10 of this regulation states, Soldiers who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court–martial. This do not apply to requests for discharge per this chapter unless the case has been referred to a court–martial authorized to adjudge a punitive discharge. The discharge request may be submitted after court–martial charges are preferred against the Soldier, or, where required, after referral, until final action 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180007674 4 1