ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20180008403 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions 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, during his time in the Army, his behavior was out of control. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 22 June 1970. b. On 20 April 1971, he accepted nonjudicial punishment, Article 15 for being absent without leave from 14 April 1971 to 20 April 1971. c. On 9 August 1971, he was convicted by a summary court-martial for being absent without leave (AWOL) on or about 16 July 1971 to 30 July 1971. The court sentenced him to extra duty for 20 days and forfeiture of $90 pay. d. On 27 October 1971, he accepted nonjudicial punishment, Article 15 for without authority travelled off post in fatigues. e. Court-martial charges were preferred against him on 1 May 1972. According to his DD Form 458 (Charge Sheet), he was charged with being absent without leave from 11 February 1972 to 18 April 1972. f. On 16 May 1972, he consulted with legal counsel and subsequently, requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service), in effect at the time. He acknowledged: * if his request was accepted, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate * he may ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a Veteran under both Federal and State laws * he can expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge g. Consistent with the chain of command’s recommendation, on 21 July 1972, the separation authority approved the applicant’s request for separation under the provisions of AR 635-200, Chapter 10 (Discharge for the Good of the Service), in effect at the time. He directed the issuance of an Undesirable Discharge Certificate and reduction to the grade of Private/E1. h. He was discharged from active duty on 12 September 1972. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged with an under other than honorable conditions characterization of service. He completed 1 year, 10 months and 1 day of net active service with 140 days of lost time. 4. The applicant applied to the Army Discharge Review Board for an upgrade of his discharge, which was denied by the Board on 5 May 1980. 5. By regulation, a member who has committed an offense or offenses, which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate will normally be furnished for a Soldier discharged for the good of the service. 6. 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 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 a pattern of misconduct, the Board concluded that the characterization of service received 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, provides for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of honorable discharge will be conditioned 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 (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. c. Chapter 10 of this regulation provides procedures for separating individuals who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge and may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate will normally be furnished to an individual who is discharged for the good of the service. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20180008403 4 1