ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 July 2019 DOCKET NUMBER: AR20180008231 APPLICANT REQUESTS: an upgrade of his under conditions other than honorable to an honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * three character letters of support 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: a. He was going on leave, but he left his military records on the bus, as he was exiting when he arrived at the airport. Once he arrived home, he called Captain (CPT) B--- and informed him of the situation. The CPT told him to wait for further guidance. Instead of waiting for further instructions or reaching out to a military installation, he choose to remain on leave beyond what he was authorized. b. He takes full responsibility for being absent without leave (AWOL); however, he hopes that the Board will take into consideration that he was only 18 years old. Since his discharge, he has never been in trouble with the law and is a very hard worker. He would like for this blemish to be removed from his record. 3. The applicant provides three letters of support from veterans and friends who have known him for over 40 years. The letters state, in part, he is a man of integrity who is hardworking and one who is loved and respected by family, friends and his community. 4. A review of the applicant’s service record shows: a. He was inducted into the United States Army on 21 April 1969. b. He accepted nonjudicial punishment on/for: * 20 May 1969, for being AWOL * 4 August 1969, for disobeying a direct order c. DD Form 458 (Charge Sheet), dated 13 July 1970, court-martial charges were preferred against him for one specification of being AWOL on or about 25 February 1970 to 7 July 1970. d. On 11 July 1970, he consulted with legal counsel and subsequently requested discharge under the provision (UP) of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10. In his request, he acknowledged: * he may be discharged under other than honorable conditions and furnished an undesirable discharge certificate * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life e. Consistent with the chain of command recommendations on 4 August 1970, the separation authority approved the discharge and issued an Undesirable Discharge Certificate. f. On 5 September 1970, the applicant was discharged under other than honorable conditions under the provisions of AR 635-200 Chapter 10. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year and 4 days of service with 134 days of lost time. He received the National Defense Service Medal. 5. There is no evidence that the applicant applied to the Army Discharge Review Board for an update of his discharge. 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. 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 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 accepted responsibility for the events leading to his separation. He did not provide evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to a pattern of misconduct, which included a lengthy period 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 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) AR20180008231 4 1