ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 May 2019 DOCKET NUMBER: AR20180015290 APPLICANT REQUESTS: an upgrade to his under honorable conditions discharge characterization 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 or Discharge) 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 is seeking to have his discharge upgraded from under honorable conditions to an honorable conditions characterization. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 21 December 1970. b. He served overseas in Vietnam from 28 June 1971 until 25 February 1972. c. On 16 February 1971, he accepted non-judicial punishment for failing to be at his appointed place of duty, to wit: bed check. His punishment included forfeiture of $30 pay, 14 days of restriction and extra duty. d. On 8 June 1972, he was convicted by a special court martial of the following charges and specifications: * being absent without leave (AWOL) from 6 March 1972 until 5 April 1972 * failure to obey a lawful order * failure to obey a lawful order * being AWOL from 7 April 1972 until 1 May 1972 e. The court sentenced him to be confined at hard labor for 30 days, to forfeit $150.00 pay per month for 2 months and to be reduced to the grade of private (E-1). The sentence was adjudged on 6 June 1972. f. On 8 June 1972, the convening authority approved the sentence and ordered the sentence executed. g. Special Court-Martial Order 29, dated 11 August 1972, affirmed the sentence be duly executed. h. His DD 214 shows that he was discharged at his expiration of term of service (ETS) date of 12 April 1973. He completed 2 years and 9 days of active military service with lost time from 16 February 1972 to 28 February 1972, 6 March 1972 to 4 April 1972 and from 6 April 1972 to 6 June 1972. His DD Form 214 also shows he was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal w/Two Campaign Credits * Vietnam Campaign Medal w/60 device, * Expert Marksmanship Qualification Badge with Rifle Bar (M-16). i. His record also shows that he was transferred to the United States Army Reserves with an effective date of 13 April 1973 and he was subsequently issued a general discharge on 23 November 1976. 4. By regulation general states that 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. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the short term of service completed prior to a pattern of misconduct, which include multiple lengthy AWOL offenses, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to discharge, 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: 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, 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 635-200, in effect at the time, sets for the basic authority for the separation of enlisted personnel a. Paragraph 1-13a Honorable states that 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 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. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent non-judicial punishments but not for serious infractions. 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 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) AR20180015290 3 1