ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  19 July 2019

	DOCKET NUMBER:  AR20180008851


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

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)
* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Report of Separation from Active Duty), dated 28 November 1974 (honorable)
* DD Form 214 (Report of Separation from Active Duty), dated 13 October 1977 (under other than honorable conditions)

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 had a solid career in the Army and during his second enlistment, his mother was in significant financial need.  He did not have much to help her with his military salary, so he began working part time as a roofer.  He stayed longer than he should have so he could make extra money, which is a decision that he truly regrets.  His commander explained the reason for the discharge and he did not fight the issue; however, he is requesting an upgrade of his discharge, so he is able to utilize some of the Veterans health care benefits.

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

	a.  He enlisted in the Regular Army on 27 October 1972, received an honorable discharge on 28 November 1974 and immediately reenlisted on 29 November 1974.

	b.  On 23 May 1977, he accepted non-judicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for departing his unit without authority on 30 April 1977 and did not return until 1 May 1977.  

	c.  On 13 July 1977, he accepted NJP, under the provisions of Article 15, UCMJ, for departing his unit in an absent without leave (AWOL) status on 6 June 1977 and did not return to military control until 27 June 1977.  

	d.  On 9 September 1977, the applicant's immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of Army Regulations (AR) 635-200 (Personnel Separations-Enlisted Separations), Chapter 13, for misconduct, frequent incidents of a discreditable nature with civil or military authorities.  The commander advised him of his rights to counsel, and provided him an opportunity to submit statements on his behalf.

	e.  On 12 September 1977, the applicant acknowledged receipt of his notification from his commander, waived his right to be represented by counsel and consideration of his case to be heard by an administrative separation Board.  He did not provide a statement on his behalf. 

	f.  The applicant was recommended for separation by his commander and consistent with the chain of commands recommendations, the separation authority approved his separation on 7 October 1977 and directed the issuance of an under other than honorable conditions discharge characterization and a reduction in rank to Private/E-1. 

	g.  The applicant was discharged on 13 October 1977, under the provisions of AR 635-200, Chapter 13, paragraph 13-5a, due to misconduct.  His DD Form 214 shows he had 4 years, 10 months and 15 days of total active service with 21 days of lost time.  

	h.  He was awarded or authorized the:

* National Defense Service Medal
* Good Conduct Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle (M-16)

4.  On 9 March 1981, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing, but found it proper and equitable.  The ADRB denied his request for an upgrade of his discharge. 

5.  By regulation, AR 635-200, action will be taken to separate an individual for misconduct when it is clearly established that it is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory soldier.  

6.  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 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 multiple offenses of a criminal nature which led to the applicant’s separation, as well as a lack of character evidence provided by the applicant showing he has learned from the events leading to his separation, the Board concluded that the characterization of service received at the time of separation 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 635-200 (Personnel Separations-Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable) provides that 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 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) states 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.  Paragraph 13.  This chapter establishes policy and provides procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.

	d.  Paragraph 13-5a, of this version, in effect at the time, says that commanders will ensure that before taking separation action against a member under the provisions of this chapter, adequate counseling and rehabilitation measures have been taken. Reassignments accomplished in connection with rehabilitation attempts normally will be made without expending permanent change of station or military personnel Army (PCS-MPA) funds. See paragraph 13-7c for exceptions to this policy.

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.


ABCMR Record of Proceedings (cont)	 AR20180008851


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