ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 July 2019 DOCKET NUMBER: AR20180011802 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for The Review of Discharge or Dismissal from the Armed Forces of the United States * DD Form 214 (Report of Separation 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 stated he served less than 180 days of active duty with no other infractions on his military record. Being in field artillery and afforded no hearing protection, has given him a significant loss of hearing. Upon turning himself in from absent without leave (AWOL) he was sent to Fort Carson, CO, where he served 6 months in a personnel control facility. He forfeited 2/3 of his pay and then was separated with an under other than honorable conditions discharge. According to military paperwork his discharge should be documented as uncharacterized. 3. The applicant provides his DD Form 214 reflecting his period of service 12 November 1975 to 6 July 1976. 4. Review of the applicant's service records shows: a. He enlisted in the Army National Guard on 12 March 1974. He entered active duty for training (ADT) on 6 June1974 and was honorably discharged on 3 October 1974. b. His DA Form 2-1 (Personnel Qualification Record) shows that on 12 March 1974 he was assigned to Bravo Battery, 1st Battalion, 182d Field Artillery, Detroit MI. c. He was ordered to active duty involuntarily on 12 November 1975. d. Court-martial charges were preferred on 21 May 1976. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of AWOL from 8 December 1975 to 16 May 1976. e. He consulted with legal counsel on 24 May 1976 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). He acknowledged his understanding that after charges had been preferred against him under the Uniform Code of Military Justice, each of which authorized the disposition of a bad conduct or dishonorable discharge. He acknowledged his understanding of the following: * maximum punishment * he was guilty of the charge against him of a lesser included offense * he did not desire further rehabilitation or a desire to perform further military service * he understood if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an under other than honorable discharge certificate * if an under other than honorable conditions discharge was issued, he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the Veterans Administration and benefits of a Veteran under Federal and State law f. The applicant elected to submit a statement in his own behalf. The service record is void of a statement from the applicant. g. On 27 May 1976, he underwent a medical examination and mental evaluation, the examiner qualified the applicant for the purpose of Chapter 10 separation. h. On 18 June 1976, consistent with the chain of command recommendations, the general court martial convening authority approved the applicant’s request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service, and furnished an Undesirable Discharge Certificate. He would be reduced to the lowest grade and issued an under other than honorable conditions discharge certificate. i. On 11 October 1977, he was discharged from active duty under the provisions of AR 635-200, chapter 10, for the good of the service, in lieu of court martial. His characterization of service is under conditions other than honorable. His DD Form 214 shows he completed 6 months and 16 days of active service this period, and he had 161 days of lost time from 8 December 1975 through 16 May 1976. j. The applicant applied to the Army Discharge Review Board and on 26 September 1978, the board denied his request to change the type and nature of his discharge. 5. By regulation, AR 635-200, a member who has committed an offense or offenses, the punishment for any of which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable discharge is normally appropriate for a member who is discharged for the good of the service. Paragraph 1-9 (b), character of military service will be determined only by the member’s military record of the current enlistment of current period of service which includes an individual’s military behavior and performance of duty. 6. 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 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 lengthy period of AWOL, a lack of mitigating reason provided for the AWOL offense by the applicant, 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 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9 (Characterizing member’s service) character of military service will be determined only by the member’s military record of the current enlistment of current period of service which includes an individual’s military behavior and performance of duty. In the case of a Reserve member on active duty who is discharged, the characterization of the period of service from which he is discharged will be based solely on his military behavior and performance of duty during his current period of service while he is actually performing active duty, or active duty for training. b. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). c. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharged because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. c. Chapter 10 of the regulation provides that a Soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request maybe submitted after the court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011802 4 1