ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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	BOARD DATE:  4 April 2019

	DOCKET NUMBER:  AR20180014340


APPLICANT REQUESTS:  upgrade of his under other than honorable conditions 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 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto).  However, the Army Board for Correction of Military Records 
(ABCMR) 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, in effect, it was unfair to charge him with disobeying a lawful 
order during his service at Fort Hood, TX. 

	a.  After a third night-shift of guard duty at the motor pool, he came to his room and 
went to bed.  He had done this numerous times before and knew he did not have to 
come back to duty until the afternoon.  

	b.  His sergeant (SGT) claimed he knocked on the applicant's door at about 8 AM; 
the applicant never heard him because he was asleep.  The SGT apparently got the key 
to his room, came in, and woke the applicant; then he took the applicant to the company 
commander, who read him his rights.  

	c.  The applicant was a private (PV2)/E-2, at the time, and, after only 7 months of 
service, his commander was supposed to promote him to private first class (PFC) in a 
matter of days.  Instead, the commander stripped him of his rank and gave him 15 days 
of extra duty.  Until that point, he was a model Soldier, but this incident caused him to 
become distraught; he stupidly went absent without leave (AWOL) for 26 days.  He 
subsequently turned himself in at Fort Bragg, NC.  
	d.  At Fort Bragg, they told him he had to go back to Fort Hood if he wanted to stay 
in the Army.  Although he wanted to remain in the military, he did not want to go back to 
Fort Hood; he felt going back would not be in his best interests.  He asserts his time 
there was filled with racism because he was different; he did not hang out, nor did he 
drink or smoke.  Instead, he spent his time reading, working out at the gym, or listening 
to music at the library.  During his basic combat training (BCT) and advanced individual 
training (AIT), his leadership promoted him and recognized him as "Soldier of the Week" 
a few times.  He had planned to make the Army a career.

3.  The applicant's service records show:

	a.  He enlisted in the Regular Army on 1 September 1976 at 18 years of age.  
Following completion of BCT, he was promoted to PV2.  He completed AIT in military 
occupational specialty 76D (Material Supplyman) and orders transferred him to Fort 
Hood; he arrived on or about 24 February 1977.  

	b.  On 13 June 1977, he accepted nonjudicial punishment (NJP) for failing to go to 
his appointed place of duty at the time prescribed and willfully disobeying a superior 
noncommissioned officer's order to get out of bed.  Punishments included 14 days extra 
duty and a suspended reduction to private (PV1)/E-1.  The commander vacated the 
suspension on or about 17 June 1977 because the applicant had departed his Fort 
Hood unit in an AWOL status.  The applicant's unit dropped him from Army rolls, 
effective 17 July 1977.

	c.  On 22 August 1977, civil authority arrested the applicant and confined him in a 
county jail; he returned to military control on 23 August 1977 and transferred to the U.S. 
Army Personnel Control Facility at Fort Bragg.  

	d.  On 25 August 1977, the applicant's PCF commander preferred court-martial 
charges against him for 65 days of AWOL (17 June until 22 August 1977).  On 
2 September 1977, after consulting with counsel, the applicant requested discharge for 
the good of the service, in-lieu of trial by court-martial, under chapter 10 (Discharge for 
the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – 
Enlisted Personnel).  In his request, he affirmed no one subjected him to coercion and 
counsel had advised him of the implications of his request.  He acknowledged he was 
guilty of the charge and submitted the following statement:

*	he requested a chapter 10 discharge because his family could not support 
themselves; he was not making enough money as a Soldier and had no 
transportation
*	he came from a family of seven and felt responsible because he was the 
oldest and he was the only one of the children who had finished school; he 
did not dislike the Army, but felt he could not do two things at once; his family 
came first

	e.  His PCF commander recommended approval of the applicant's request; he 
affirmed he had personally interviewed the applicant.  The applicant told him the cause 
of his AWOL was his family problems; the applicant further stated he could not adjust to 
Army life.  

	f.  On 4 October 1977, the separation authority approved the applicant's request and 
directed his discharge under other than honorable conditions; the applicant was 
separated accordingly on 18 October 1977.  His DD Form 214 shows he was awarded 
or authorized a marksmanship qualification badge.

4.  The UCMJ violation of AWOL for more than 30 days included a dishonorable 
discharge as a punishment.  Discharges under chapter 10, AR 635-200 were voluntary, 
and were available in lieu of trial by court-martial once charges had been preferred.  
The applicant enlisted in the Regular Army at age 18; he states, in effect, he 
overreacted by going AWOL when his commander reduced him for an offense he felt 
was unjust.  In reaching its determination, the Board can consider the applicant's 
petition, his service record, and his statements in light of the published guidance on 
equity, injustice, or clemency. 

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not 
warranted.  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 multiple offenses of a criminal nature, as well as the failure to 
accept responsibility and show remorse for the events leading to his separation, 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.


	  
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.


ADMINISTRATIVE NOTE(S):

Not Applicable

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within 3 years after discovery of the alleged error or injustice.  This 
provision of law also allows the ABCMR to excuse an applicant's failure to timely file 
within the 3-year statute of limitations if the ABCMR determines it would be in the 
interest of justice to do so.  

2.  AR 635-200, in effect at the time, prescribed policies and procedures for enlisted 
administrative separations.

	a.  Paragraph 1-9e (General Discharge).  A general discharge was a separation from 
the Army under honorable conditions, where the Soldier's military record was not 
sufficiently meritorious to warrant an honorable discharge.

	b.  Chapter 10 permitted a Soldier to request discharge for the good of the service 
when they had committed an offense or offenses which, under the UCMJ and the 
Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad 
conduct or dishonorable discharge as a punishment.  The Soldier could submit such a 
request at any time after court-martial charges were preferred.  Once approved, an 
undesirable discharge was normally furnished, but the discharge authority could direct 
either an honorable or general discharge, if warranted.

3.  The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of 
Maximum Punishments showed Article 86 (AWOL for more than 30 days), UCMJ, 
included a dishonorable 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 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 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180014340

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