ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20180012767 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge 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) * DD Form 215 (Correction to DD Form 214) * VA Form 21-4138 (Statement in Support of Claim) * Letter from Veterans Affair (Evidence Intake Center) 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 he was having trouble in the unit he was assigned to at Fort Knox, Kentucky and he tried to seek psychological treatment, but was denied. He requested to transfer to jump school, but was not allowed to transfer. He admits he went absent leave without leave (AWOL) on 2 separate occasions for personal reasons. However, he was never AWOL for 180 days. He turned himself in on both incidents and he was never court-martialed for any offense. His commander suggested he go back to school and then come back into the Army, when things were better for him. 3. A review of the applicant’s service record shows: a. He enlisted in the Army National Guard on 25 September 1977 and was ordered to active duty on 18 March 1979. b. He accepted/received non-judicial punishment (NJP) on/for: * on or about 4 November 1977 for going from his appointment place of duty to another place on post * on or about 14 November 1977 for breaking restriction * on or about 31 January 1978 for failing to obey a lawful order * on or about 1 May 1979 for absenting himself from his unit c. On 17 October 1979, the applicant’s commander recommended him for discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), paragraph 14-33b (1), for misconduct. d. On 19 October 1979, the applicant acknowledged receipt of the notification of the separation action. He 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 may expect to encounter substantial prejudice in civilian life * he would be ineligible to apply for enlistment in the United States Army for 2 years after discharge. e. On 31 October 1979, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for separation under the provisions of AR 635-200, paragraphs 14-33b (1) and 14-34 for misconduct. f. He was discharged on 5 November 1979 with an under other than honorable conditions character of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he completed 5 months and 3 days of net active service. 4. 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. 5. By regulation, members are subject to separation for patterns of misconduct and frequent incidents of discreditable nature with civil or military authorities. 6. 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 short term of honorable service completed prior to a pattern of misconduct, 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: As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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) AR20180012767 3 1