ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20180008058 APPLICANT REQUESTS: an upgrade of his under conditions other than honorable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 is requesting an upgrade because he has matured and regrets his behavior. His wife had a baby and he went absent without leave (AWOL) to get home. He realizes he should not have done so. 3. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 22 July 1970. b. He was convicted by special court-martial on 16 July 1971 for 3 specifications of absenting himself from his organization on or about 3 November 1970 through 9 March 1971, 22 March 1971 through 31 March 1971 and 21 April 1971 through 26 May 1971. c. On 28 August 1971, the applicant’s immediate commander initiated action to separate him under the provisions of Army regulation (AR) 635-212 (Discharge Unfitness and Unsuitability), paragraph 6a for unfitness due to frequent periods of AWOL, the applicant’s desire not to soldier and a negative attitude. d. On 28 August 1971, the applicant was advised by counsel on the basis for the contemplated action to separate him for unfitness under AR 635-212. He waived consideration of his case by a board of officers and waived personal appearance before a board of officers. He elected not to submit statements on his own behalf. He acknowledged: * he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him * as a result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life e. Consistent with the chain of command recommendations the separation authority approved the applicant’s discharge on 3 September 1971, under the provisions of AR 635-212 and directed he would be furnished with an Undesirable Discharge Certificate. f. He was discharged from active duty on 10 September 1971 with an under conditions other than honorable characterization of service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 5 months and 5 days of total active service with lost times from: * 25 September 1970 through 26 September 1970 * 3 November 1970 through 8 March 1971 * 22 March 1971 through 30 March 1971 * 14 April 1971 through 13 June 1971 * 6 July 1971 through 6 July 1971 * 14 July 1971 through 9 September 1971 4. By regulation action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier further effort is unlikely to succeed or rehabilitation is impracticable or he is not amenable to rehabilitation measures. An individual separated by reason of unfitness will be furnished an undesirable discharge certificate except that an honorable or general discharge certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. 5. On 4 April 1976 the Army Discharge Review Board (ADRB) reviewed the applicant’s discharge processing but found it proper and equitable. The ADRB denied his request of an upgrade of his discharge. 6. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of honorable service completed prior to multiple lengthy AWOL offenses, as well as a lack of character evidence submitted by the applicant showing he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service given at the time of discharge was appropriate. 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 (AR) 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 (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment or current period of service with due consideration for the member’s age, length of service, grade and general aptitude. b. Paragraph 1-9e (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 discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security. c. Paragraph 1-9f (Undesirable Discharge) states an undesirable discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. d. Chapter 13 of that regulation provides action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier, further effort is unlikely to succeed. An individual separated by reason of unfitness will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstance in his case. 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 (BCMNRs) 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 court-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 on the basis of 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20180008058 3 1