ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20180012644 APPLICANT REQUESTS: an upgrade of his discharge from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 states that he is requesting and upgrade of his under other than honorable conditions discharge to honorable. He was informed at the Personnel Control Facility (PCF) at Fort KY, by a Judge Advocate General (JAG) lawyer that he could have character of service changed in 5 years to an honorable discharge. 3. A review of the applicant records show: a. He enlisted in the Regular Army (RA) on 19 March 1976. b. On 17 September 1976, he received non judicial punishment (NJP) for wrongfully possessing marijuana. c. On 21 October 1976, he received NJP for dereliction of duty for failing to stay awake during regimental guard duty. His punishment included reduction to the grade of PVT/E-1. d. Court-Martial charges were preferred against him on 19 January 1977. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave from 29 November 1976 to 5 January 1977. e. On 21 January 1977, he consulted with counsel. Counsel advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice, of the possible effects of an undesirable discharge, if this request is approved; and of the procedures and rights available to him. Following consultation, he requested discharge from the Army under the provisions of chapter 10 (in lieu of trial by court-martial) of Army Regulation (AR) 635-200 (Personnel separations). f. In a memorandum to his immediate commander, he requested to be discharged for the good of the Service because charges have been preferred which authorizes the imposition of a bad conduct or dishonorable discharge. He acknowledged that he was guilty of the charges against him and that a bad conduct discharge may be imposed as a result. He included a self-authored letter that stated he joined the Army for financial security, and he would like to be discharged because his mom is ill. He would like to stay in the Army, but his mom is more important to him. He went absent without leave (AWOL) because of home issues and things that were troubling him. g. On 8 February 1977, his chain of command recommended discharge under the provisions of AR 635-200, paragraph 10-3 (good of the service) with a discharge under other than honorable conditions. h. On 11 February 1977, the separation authority approved separation under the provisions of AR 635-200, chapter 10 for the good of the service with an under other than honorable discharge and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate. i. He was discharged from active duty on 25 February 1977. His DD Form 214 shows he was discharged under the provisions of chapter 10 of AR 635-200 with a under other than honorable conditions character of service. He completed 10 months and 1 day of active duty service with 37 days of lost time. He was awarded or authorized Marksmanship-Marksmanship Qualification Badge (M16) and the Expert Marksmanship Qualification Badge with Hand Grenade Bar. 4. By regulation, AR 635-200, chapter 10 provides that 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. 5. 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 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the short term of service completed prior to a pattern of misconduct and the reason for the applicant's separation. The Board found no evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board concluded that the characterization of service received at the time of discharge 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. 6/6/2019 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states that 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 that 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. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 10 of this regulation provides that 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, 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 certificate normally is appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if such are merited by the member’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, 1. 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.