ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20180010090 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) * self-authored statement * DD Form 214 (Certificate of Release or Discharge From Active Duty) 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 the day before he was set to graduate from basic training, his mother died. He admits that he went on leave and failed to return to base. While being absent without leave (AWOL), he was involved in a petty thief operation and sent to jail. He asserts he has grown into a responsible person. However, due to his type of discharge, he has found it very difficult to obtain employment and educational opportunities. 3. The applicant provides a self-authored statement which states: a. After his mother’s death his world stopped. He was not in the right frame of mind and made serious mistakes. For the last 37 years, he lived with the shame of those decisions, but believes that it is time to correct his mistake. b. For the last 15 years, he has worked with the Wendy’s Corporation, gained valuable experience and built a strong work ethic. Since leaving the Army, he has obtained a Culinary Arts Degree and hopes the degree coupled with the upgrade of his discharge will provide him with higher paying employment. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 18 March 1980. b. He was reported AWOL from 28 August 1980 to 8 October 1980 and 10 October 1980 to 13 August 1981. c. On 17 July 1981, he was convicted by the Franklin County Municipal Court, Columbus OH for petit theft of less than $150.00. He was sentenced to 120 days in County Jail. d. On 17 July 1981, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), Chapter 14-12a, in effect at the time, due to misconduct, conviction by civil court. e. On 23 July 1981, the applicant acknowledged receipt of the commander’s intent to separate him. Subsequently, he waived consultation with legal counsel and submitted a statement on his own behalf. f. Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to patterns of misconduct, frequent incidents of discreditable nature with military authorities and established shirking. g. Consistent with the chain of command’s recommendations, on 24 September 1981, the separation authority reviewed the separation action and approved the applicant's discharge for misconduct, conviction by civil court. He directed an Under Other Than Honorable Conditions Discharge Certificate. h. The applicant was discharged on 22 October 1981. His DD Form 214 shows he was discharged for misconduct with an under other than honorable conditions characterization of service. He completed 7 months and 20 days of net active service and 348 days of lost time. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation (AR 635-200), an individual will be considered for discharge when convicted by civil court. An under other than honorable discharge certificate is normally appropriate unless the discharge authority directs an honorable or general discharge if such is merited by the member’s overall record. 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 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 multiple lengthy periods of AWOL, and offenses of a criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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 separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any characterization would be clearly in appropriate. b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14-12a of this regulation prescribes that an individual will be considered for discharge when convicted by civil court. An under other than honorable discharge certificate is normally appropriate unless the discharge authority directs an honorable or general discharge if such is merited by the member’s overall record. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180010090 4 1