ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS
RECORD OF PROCEEDINGS

                  
	IN THE CASE OF:

                   BOARD DATE:  20 May 2019

                   DOCKET NUMBER:  AR20180014994


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), with Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 27 September 2018
* his parents' marriage license with an unclear date
* his parents' Certificate of Marriage Resolution and Divorce Decree, dated 7 April 1978
* State of Ohio Certificate of Death, dated 29 April 1980, with document receipt dated 28 August 2018   

FACTS: 

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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 he is requesting an upgrade because he had family hardships that lead to his discharge.  His parents were separated and subsequently divorced, three months after his enlistment.  His grandfather, whom he was very close to, became very ill at the age of 66 years old and was not expected to live long.  He was granted leave to go see him but he did not pass away until after he had returned to duty.  He did not handle these hardships well.  He was married in 1983 and has raised three children.  In 1989, he started a small family construction business, which he has operated for 28 and 1/2 years with his wife and son.  He is getting older and cannot perform his job as well as he used to.  He would like to receive VA medical benefits for serving his country.

3.  The applicant enlisted in the Regular Army on 24 January 1978.  

4.  The applicant nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses:

   a. On 26 April 1979, for without authority, leaving his appointed place of duty, on or about 14 March 1979.  His punishment included a suspended rank reduction to private (PV2)/E-2, which was vacated on 31 May 1979 after he was apprehended for possession of marijuana on or about 18 May 1979. 

   b. On 8 November 1979, for without authority, absenting himself from his unit, from on or about 16 October 1979 through on or about 18 October 1979.  His punishment included another suspended rank reduction, which was vacated on 5 December 1979, after he failed to report to duty on or about 30 November 1979. 

   c. On 19 January 1980, for without authority absenting himself from his unit, from on or about 17 December 1979 through on or about 2 January 1980.

5.  The applicant's complete separation packet is not available for review.  However his record contains:

a. DA Form 2-1 (Personnel Qualification Record – Part II), showing lost time for:

* Absent Without Leave (AWOL) 791017-791018
* AWOL 791217- 800101
* Confined Civilian Authorities (CCF) 790712-790715
* AWOL 800331 - 800410 

b. Commander’s memorandum for discharge approval under the provisions of
Army Regulation 635-200, paragraph 14-33b (1), for misconduct, dated 11 June 1980.  

6.  Orders Number 156-352, issued by the Headquarters, 7th Infantry Division and Fort Ord, Fort Ord, CA on 4 June 1980, reassigned the applicant to the transition point for discharge processing and ordered the applicant’s discharge effective 12 June 1980.  

7.  The applicant was discharged on 12 June 1980, under the provisions of Army Regulation 635-200, paragraph 14-33b (1), by reason of misconduct – frequent incidents of a discreditable nature with military authorities.  His DD Form 214 shows his service was characterized as UOTHC.  His DD Form 214 further shows in:

* Item 12c (Record of Service – Net Active Service This Period), he was credited with completing 2 years, 3 months, and 16 days of net active service
* Item 28 (Narrative Reason for Separation), the entry "misconduct - frequent incidents of a discreditable nature with military authorities"
* Item 29 (Dates of Time Lost During this Period), the entries "791017-791018"; "791217-800101"; "790712-790715"; and "800331-800416"

8.  In reaching its determination, the Board should consider the applicant’s the applicant's overall record and provided statement in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION

1.  The Board carefully considered the applicant’s request, supporting documents, his statement, evidence in the record and published guidance for consideration of discharge upgrade requests.  The Board determined that based on his statement, the nature of his misconduct and his post-service behaviors that clemency was warranted.

2.  After review of the application and the evidence provided, the Board determined that relief was warranted.

BOARD VOTE

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:	
	
1.  The Board determined the evidence presented is sufficient to warrant a recommendation for full relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 12 June 1980 to reflect a General, under honorable conditions character of service.



	
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):  N/A



REFERENCES:

1.  Title 10, U.S. Code, 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.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline).  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds.  

	a.  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, Boards 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.  

	b.  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.

ABCMR Record of Proceedings (cont)	AR20180014994

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