ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20180011629 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. He also request a personal hearing before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two character reference letters 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 that he believe his record is unjust during his time before he was discharge from the Army. He called home and was told that his mother was very ill, so he asked the company commander for two weeks of leave. He said "no". His reason was that he no longer had a mother or father. The applicant offered to go to Vietnam or anywhere if the commander would let him have two weeks to check on his mom. He felt like seeing his mother before she got seriously ill meant a lot to him. He was told at discharge that in five years, his discharge would be upgraded to get all benefits; if he didn’t get in any trouble. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army 4 January 1971. b. On 14 June 1971, he was convicted by a summary court-martial of two specifications of failing to obey an order, one specification of willfully disobeying lawful orders; and one specification of failing to go at the prescribed time to his appointed place of duty. The court sentenced him to reduction to E-1. He was reduced to E-1, the sentence was adjudged on 14 June 1971. c. On 10 July 1975, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) shows he was charged with one specification of being absent without leave from 16 August 1971 to 25 June 1975 (nearly 4 years of AWOL). It also indicates his AWOL was terminated by apprehension. d. The complete fact and circumstances surround his discharge are not available for review with this case. However, the record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged from active duty on 21 January 1976 in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), due to a misconduct, with an under other than honorable conditions discharge. He completed 10 months and 27 days of active service, and had 1,512 days of lost time. He was awarded or authorized: * National Defense Service Medal * 2nd Class Machine Gun M60 4. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 5. By regulation (AR 635-200), Chapter 10, a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service, in lieu of trial by court-martial. 6. In reaching its determination, the Board can consider the applicants 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that they could reach a fair and equitable decision in the case without a personal appearance from the applicant. Additionally, after the documentary review, the Board also determined that there was insufficient evidence to grant relief. Based upon the short term of service completed prior to a pattern of misconduct and a large amount of lost time, 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel a. Paragraph 1-13 (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. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. b. Paragraph 1-13b (General discharge) 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) A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for security reasons, or for the good of the service d. Paragraph 11-2 (Bad Conduct Discharge ) A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 3. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, states applicants do not have a right to a formal hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and ABCMRs 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, ABCMRs 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. ABCMR Record of Proceedings (cont) AR20180011629 3 1