ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20180014091 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 offered an early out on his contract, and he accepted. He was told that his discharge would automatically be upgraded to an under honorable conditions characterization of service within 6 months of separating from service. He recently attained his DD Form 214 (Report of Separation from Active Duty) from National Personnel Records Center and noticed that the characterization of service was still reflected as under other than honorable conditions. 3. A review of his service records shows: a. He enlisted on 18 December 1972 in the Regular Army. b. His DA Form 20 (Enlisted Qualification Record) reflects that he was declared absent without leave (AWOL) for 30 days starting on 28 June 1974, dropped from rolls on 26 July 1974 and present for duty on 28 July 1974. It further reflects that he was declared AWOL again for 8 days starting on 29 July 1974, and confined on 6 August 1974. c. On 2 October 1973, the applicant accepted nonjudicial punishment (NJP) for one specification of failure to be at appointed place of duty. His punishment consisted, in part, of reduction to private (PVT)/E-1. a. d. Special Court Marital Order Number 19, indicates he was charged on 18 February 1974, for breaching restraints. His sentence included the performance of hard labor without confinement for 30 days and forfeiture of $120.00 per month for 3 months. e. On 5 April 1974, a DA Form 4126 (Bar to Reenlistment Certificate) was initiated and approved by his chain of command. f. Court marital charges were preferred on 7 August 1974. His DD Form 458 (Charge Sheet) indicates he was charged with three specifications of AWOL, and one specification of failure to be at his appointed place of duty. g. He consulted with legal counsel on 28 August 1974 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: * if his request was accepted, he may be discharged under conditions other than honorable * if approved, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration * he may be deprived of his rights and benefits as a Veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge h. Consistent with the chain of command's recommendation, on 10 September 1974, the separation authority approved the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, discharge for the good of the service with an under other than honorable conditions characterization of service. i. On 17 October 1974, he was discharged from active duty under the provisions of AR 635-200, Chapter 10 with an under other than honorable conditions characterization of service. He completed 1 year, 7 months, and 19 days of active service with 73 lost days. He was awarded or authorized: * National Defense Service Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M16) * Sharpshooter Marksmanship Qualification Badge with Grenade Bar 4. By regulation 635-200, an individual 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. An under other than honorable 1. conditions characterization of service will normally be furnished an individual who is discharged for the good of the service. 5. 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 there is insufficient evidence to grant relief. 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 pattern of misconduct leading to the discharge, 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. 6/25/2019 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 (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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 discharge by reason of misconduct, unfitness, and unsuitability. c. Chapter 10 of this regulation states an individual 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. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 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 1. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.