ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  31 July 2019

	DOCKET NUMBER:  AR20180009374


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

	a.  He enlisted in the Regular Army on 23 August 1979.

	b.  According to the DD Form 458 (Charge Sheet), court-martial charges were preferred against him on 28 November 1979 for being absent without leave (AWOL) on or about 11 October 1979 to 16 November 1979.

	c.  On 30 November 1979, he consulted with legal counsel and he elected not to submit a statement on his own behalf 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:

* he was guilty of the charge against him or of a lesser included offense which also authorizes the imposition of a bad conduct or dishonorable discharge
* he did not desire further rehabilitation or desire to perform further military service
* if his request was accepted, he may be discharged under conditions other than honorable
* 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 because of an Under Other Than Honorable Discharge

	d.  Consistent with the chain of command’s recommendation, on 18 December 1979, 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 characterization of service of Under Other Than Honorable Conditions and reduction to the grade of Private/E1.

	e.  He was discharged from active duty on 11 January 1980.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with an under other than honorable conditions characterization of service.  He completed          3 months and 13 days of net active service with 35 days of lost time.

3.  There is no evidence the applicant has applied to the Army Discharge Review Board for an upgrade of his discharge.   

4.  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.  A discharge under other than honorable conditions normally is appropriate for a Soldier discharged for the good of the service.

5.  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 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 character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the short term of honorable service completed prior to 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) is a separation with honor.  The honorable characterization is appropriate when the quality of the member’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) is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 of this regulation provides procedures for separating members who have committed an offense or offenses, for which under includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  A discharge under other than honorable conditions normally is appropriate for a member 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180009374


3


1