ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF 

	BOARD DATE:  5 September 2019

	DOCKET NUMBER:  AR20180012486


APPLICANT REQUESTS:  his under other than honorable conditions (UOTHC) characterization of service be upgraded

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:   
DD Form 149 (Application for Correction of Military Record)

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 his dishonorable discharge was supposed to be not fit for military service.  He was being bullied by his teammates and decided to leave for a weekend and he did not go back.  He got out early in Germany for the same reason.  He was a young, dumb twenty-year old that did not read all the papers.  He has two honorable discharges.    

3.  A review of the applicant’s service record shows:

     a.  He enlisted in the Regular Army on 21 September 1970 and was honorably discharged on 4 May 1972, in order to enlist in the Army National Guard.  He enlisted in the Army National Guard on 16 May 1972 and was involuntarily ordered to active duty on 29 May 1973 for a period of four months and one day.

     b.  On 26 October 1973, in consultation with counsel, he submitted a “Request for Discharge for the Good of the Service.”  He acknowledged:      

* he had not been subject to coercion with respect to the request
* if his request was accepted he may be discharged under other than honorable conditions and furnished an undesirable discharge certificate
* he understood the possible effects of an undesirable discharge to include the loss of many or all Army benefits, ineligibility for many or all benefits administered by the Veterans Administration, possible deprivation of veterans benefits under both Federal and State law, and that he may encounter substantial prejudice in civilian life
* he had been afforded the right to consult with counsel
* counsel fully advised him on the matter

     c.  Counsel’s note included that he had provided the applicant advice regarding the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.
  
     d.  On 5 November 1973 he was formally charged with a single offense of being absent without leave from 2 July 1973 until 22 October 1973.

     e.  On 13 November 1973, consistent with the recommendations of the chain of command, the separation authority approved applicant’s “Request for Discharge for the Good of the Service” and directed issuance of an undesirable discharge certificate and reduction to the lowest enlisted grade.  

     f.  He was discharged on 29 November 1973, in accordance with Army Regulation (AR) 635-200 (Personnel Separations—Enlisted Personnel), in effect at the time.  His DD Form 214 (Report of Separation from Active Duty) shows in:

* item 9a (Type of Separation), Discharge as a Reservist
* item 9c (Authority and Reason), Paragraph 10-1, AR 635-200
* item 9e (Character of Service), under other than honorable conditions
* item 18a (Net Active Service This Period), 0 years, 2 months, 7 days
* item 21 (Time Lost), 114 days
* item 26 (Decorations, Medals, Badges), National Defense Service Medal, Sharpshooter (Rifle)

4.  The Army Discharge Review Board considered requests from applicant for an upgrade on 21 January 1977 and 6 November 1987, but on both occasions found his discharge was proper and equitable.

5.  By regulation (AR 635-200), an individual facing court-martial for offenses the punishment for which included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service at any time after charges were preferred.  Individuals were normally to be furnished undesirable discharge certificates.

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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted.  Based upon the lengthy period of AWOL and a lack of mitigating reasons provided for the AWOL offenses provided by the applicant, the Board concluded that the characterization of service received at the time of separation was appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:CMM	:BS	:CJR	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, set forth the policy for administrative separation of enlisted personnel.  Chapter 10 provided that an individual facing court-martial for offenses the punishment for which included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service at any time after charges were preferred.  Commanders were directed to ensure that an individual was not coerced into submitting a request and were given at least seventy-two hours to consider the wisdom of such a request for discharge.  Consulting counsel were required to advise the member concerning the elements of the offenses charged, burden of proof, possible defenses, possible punishments, the provisions of Chapter 10, the requirement of voluntariness, the type of discharge normally given under Chapter 10, rights regarding the withdrawal of the request, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  The regulation also prescribed that an individual separated under Chapter 10 would normally receive an undesirable discharge certificate.

3.  AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic policy for the separation of enlisted personnel.

	a.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member'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.  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 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.


ABCMR Record of Proceedings (cont)	 AR20180012486


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