ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  29 September 2020 DOCKET NUMBER:  AR20180013427 


APPLICANT REQUESTS:  an upgrade of his under conditions other than honorable discharge to general, under honorable conditions. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DD Form 214 (Armed Forces of the United States Report of Transfer orDischarge), for the period ending 1 July 1971



FACTS: 

1.The applicant did not file within the three-year time frame provided in Title 10, UnitedStates Code, section 1552(b); however, the ABCMR conducted a substantive review ofthis case and determined it is in the interest of justice to excuse the applicant's failure totimely file.

2.The applicant states it was a miscommunication on orders and stressed.  He is avery humbled person now and just trying to a leave a positive mark for hisgrandchildren.

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

a.He enlisted in the Regular Army on 16 October 1969.

b.He accepted non-judicial punishment on 6 February 1970 for being absentwithout leave (AWOL) from 18 January 1970 to 5 February 1970. 

c.Special Court-Martial Order Number 903, published by Headquarters SpecialTroops, United States Army Armor Center, Fort Knox, KY on 15 June 1970, convicted the applicant of one specification of being absent without leave from 14 February 1970 to 14 May 1970.  His sentence consisted of confinement at hard labor for 4 months. 

d.On 14 June 1971, court-martial charges were preferred against the applicant forviolations of the Uniform Code of Military Justice (UCMJ).  Specifically, his DD Form 
458 (Charge Sheet) shows he was charged with two specifications of being AWOL from 30 August 1970 to 5 September 1970 and from 3 October 1970 to 5 June 1971. 

e.On 14 June 1971, the applicant consulted with legal counsel and requesteddischarge in lieu of trial by court-martial under the provisions of Chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) because of the charges preferred against him under the UCMJ, which authorize the imposition of a bad conduct or dishonorable discharge.  He acknowledged: 

.if his request was accepted, he may be discharged under other thanhonorable conditions and furnished an Undesirable Discharge Certificate

.he would be deprived of many or all Army benefits, may be ineligible for manyor all benefits administered by the Department of Veterans Affairs (VA), maybe deprived of his rights and benefits as a veteran under both Federal andState law

.he may expect to encounter substantial prejudice in civilian life because of anunder other than honorable conditions discharge



f.His record is void of the chain of command recommendations and the separationauthority approval.  However, his record contains his DD Form 214, which shows he was discharged under the provisions of Chapter 10 of AR 635-200 on 1 July 1971 with an under conditions other than honorable characterization of service.  It also shows he completed 9 months and 6 days of active service with 340 days lost. 

4.There is no indication the applicant applied to the Army Discharge Review Board foran upgrade of his discharge within its 15-year statute of limitations.

5.By regulation, an individual who has committed an offense or offenses, thepunishment for which, under the Uniform Code of Military Justice, includes a badconduct or dishonorable discharge, may submit a request for discharge for the good ofthe service.

6.In reaching its determination, the Board can consider the applicant’s petition and hisservice record in accordance with the published equity, injustice, or clemencydetermination guidance.

BOARD DISCUSSION: 

The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests.  The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency.  The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination.  Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust, and that relief was not warranted. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :XXX :XX 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, United States Code, section 1552(b), provides that applications forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice.  This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3 year statute of limitations if the Army Board forCorrection of Military Records (ABCMR) determines it would be in the interest of justiceto do so.

2.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect atthe time, set forth the basic authority for the separation of enlisted personnel.

a.Paragraph 1-9d (Honorable Discharge) states an honorable discharge is aseparation 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. 

b.Paragraph 1-9e (General Discharge) states a general discharge is a separationfrom the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  

c.Chapter 10 (Discharge for the Good of the Service) states an individual who hascommitted an offense or offenses, the punishment for which, under the Uniform Code of Military Justice, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 

3.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.  Clemency generally refers to relief specifically granted from a criminalsentence.  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 maybe warranted based on equity or relief from injustice.  This guidance does not mandaterelief, but rather provides standards and principles to guide Boards in application of theirequitable relief authority.  In determining whether to grant relief on the basis of 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 arelevant error or injustice was committed, and uniformity of punishment.  Changes to thenarrative reason for discharge and/or an upgraded character of service granted solelyon 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. 
 
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