ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
BOARD DATE:  26 July 2019 DOCKET NUMBER: AR20180010666

APPLICANT REQUESTS: an upgrade of his under conditions other than honorable conditions discharge to under honorable conditions (general) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Self-authored Statement
   * DD Form 258A (Undesirable Discharge Certificate) 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 would like to have his undesirable discharge changed to a general discharge. He was given a “Gay” and criminal discharge and he is neither. He spent 7 months in stockade without counsel and wanted a trial so he could finish his term, but he never received one. He received a visit from an officer while he was incarcerated and his unit forgot his paperwork or it was lost and the officer realized that he should have already been released. The officer further told him to get out now and he was discharged the following day. He believes he deserve an upgrade because he served his time in Germany and he did not have much time left before he would have gotten out. He wanted to finish his time while in the service and wants copies of his military records.

3. The applicant provides a copy of his DD Form 258A which shows his certification and his discharge from the Army of the United States on 1 September 1970.
1. 

4. The applicant’s service record shows:

   a. He was inducted in the Army of the United States on 2 May 1968.

   b. He served in Germany from 15 September 1968 to 11 April 1970 as an Infantryman (11B).

c. On 17 April 1970, court-martial charges were preferred on the applicant. His
DD Form 458 (Charge Sheet) indicates he was charged with one specification of absent without leave (AWOL) on or about 17 March 1969 until on or about 17 April 1970.

   d. On 20 July 1970, the applicant's immediate commander notified the applicant of his intent to initiate separation actions against the applicant under the provisions of paragraph 45, Amy Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, (Absent Without Leave) AWOL, Desertion) by reason of “Absent Without Leave.”

   e. On 20 July 1970, he consulted with legal counsel and subsequently requested discharge under the provisions of AR 635-206.  In his request, he acknowledged:

* he waived his rights to consideration by a board before officers
* he waived his rights to a personal appearance before a board of officers
* he shall be deprived of many or all Army benefits
* he waives his rights to make a statement on his own behalf
* he waived his rights to seek representation of counsel
* he may be ineligible for many or all benefits administered by the Veterans’ Administration
* he may be deprived of his rights and benefits as a veteran under both Federal and State law
* he may until the date up until the date of discharge authority orders, directs or approves his discharge, withdraw the waiver and request a board of officers hear his chase

   f. On 20 July 1970, the applicant's immediate commander formally recommended the applicant's separation from service under the provisions of Army Regulation (AR) 635-206, (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, (Absent Without Leave) AWOL, Desertion ) based on his misconduct.  He recommended an Undesirable Discharge Certificate.

   g. On 22 August 1970, consistent with the chain of command recommendations, the separation authority approved the request for discharge. He would be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate (DD Form 258A).
   a. 

   h. On 1 September 1970, he was discharged from active duty under the provisions of AR 635-206 with a separation program number (SPN) 283 by reason of misconduct, AWOL, trial waived. His characterization of service is under conditions other than honorable. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year and 1 day of active service with lost time of 488 days.  It also shows he was awarded or authorized the:

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

5. On 21 March 1979, the Army Discharge Review Board determined that applicant were properly and equitably discharged. Accordingly, his request for a change in the character and/or reason of your discharge was denied.

6. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). A member would be considered for discharge for extended AWOL or desertion. An undesirable discharge was normally considered appropriate.

7. 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 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 for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board considered the applicant's statement as to the reason for his discharge, his service record, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for his absence or that the applicant accepted responsibility or showed remorse for the events leading to his separation; he did not provide character witness statements or evidence of post-service achievements in support of a clemency determination by the Board. Based upon a preponderance of evidence to include the short term of honorable service completed prior to a lengthy period of AWOL, the Board agreed that the applicant's discharge characterization was not in error or unjust.


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.
8/19/2019

 X	
CHAIRPERSON
Signed by: 

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) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without leave or Desertion), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. An individual will be considered for discharge when he has been initially convicted by civil authorities, or action taken against him which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year. An individual discharged for conviction by civil court normally will be furnished an Undesirable Discharge Certificate.

   a. Section VII provides for conditions and procedures for the discharge of enlisted persons for desertion or absence without leave who are amendable to trial and whose return to military control is prohibited.

   b. Individuals who discharge by reason of desertion or absence without leave may be considered for discharge under this regulation when it is determined by an administrative review of all facts that there is substantial evidence to support a determination of desertion or absence without leave.

3. AR 635-200 (Personnel Separations Enlisted Personnel), in effect at the time, sets forth the basic authority for the 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 other characterization would be clearly inappropriate.

   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.

4. 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
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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.

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