ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20180011237 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an honorable 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) 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002070202 on 20 September 2002. 3. The applicant states at the time he went absent leave without leave (AWOL) he was young and in love with a woman he later married. He went home on approved leave, but stayed longer than he was authorized. He did not know to ask for leniency. He regrets his actions and humbly ask for consideration of an upgrade to his discharge, so he can better his life. He is 61 years old and still cannot afford a home. He receives supplemental security income (SSI), which is $750.00 a month. He is homeless and an upgrade would change his life. He apologizes for the bad decisions he made and feels that should count. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 8 October 1976. b. He accepted/received non-judicial punishment (NJP) on/for: * on 8 August 1977, for using disrespectful language towards a non-commissioned officer, on or about 22 July 1977. * on 4 November 1977, for using disrespectful language towards a non-commissioned officer, on or about 26 October 1977. c. On 10 February 1978, he was convicted by special court-martial on 2 charges of absenting himself from his unit on or about 7 Dec 1977 to 8 December 1977 and on or about 16 December 1977 to 8 January 1978. d. On 30 January 1978, the sentence was adjudged and approved on 10 February 1978. e. On 10 March 1978, the applicant’s commander recommended him for discharge under the provisions of Army Regulation (AR) 635-200 200 (Personnel Separations – Enlisted Separations) paragraph 14-33b (1), for misconduct. f. On 13 March 1978, the applicant acknowledged receipt of the notification of the separation action. g. On 21 March 1978, the applicant consulted with counsel and he further acknowledged: * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions or an under other than honorable conditions discharge is issued to him * he understands if issued a discharge under conditions other than honorable, he may be ineligible for many or all benefits as veteran under both Federal and State laws * he would be ineligible to apply for enlistment in the United States Army for 2 years after discharge h. On 10 May 1978, he accepted NJP for: * disobeying a lawful order from a non-commissioned officer on or about 9 April 1978. * failing to go at the time prescribed to his appointed place of duty on or about 12 April 1978, 15 April 1978, 19 April 1978 and 26 April 1978. i. On 19 May 1978, consistent with the chain of command recommendations for separation the authority approved the discharge recommendation for separation under the provisions of AR 635-200, paragraph 14-33b for misconduct. He would be issued an under other than honorable conditions discharge certificate. j. He was discharged on 25 May 1978. His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 6 months and 20 days of net active service with 28 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, members are subject to separation for patterns of misconduct and frequent incidents of discreditable nature with civil or military authorities. 7. The Board should consider the applicants 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 lengthy pattern of misconduct, as well as a lack of post-service character evidence submitted by the applicant showing he has learned and grown from the events leading to his separation, 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, sets forth the basic authority for separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade and general aptitude. b. Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 1-13c (Under Other than Honorable Conditions) states a discharge under other than honorable condition it is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for homosexuality, for security reasons, or for the good of the service. d. Chapter 14 states action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier, further effort is unlikely to succeed 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 ABCMR Record of Proceedings (cont) AR20180011237 5 1