ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20180016588 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable 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 (USC), Section 1552), with typed letter to his Member of Congress * Honor Graduate Letter of Commendation, dated 6 July 1977 * Accelerated Advancement to E-2 Memorandum, dated 6 July 1977 * Letters of Commendation, dated 28 August 1978 and 23 January 1979 * Enlisted Evaluation Report * DD Form 214 (Certificate of Release of Discharge from Active Duty), for the period ending 20 December 1979 * Department of Veterans Affairs (VA) Identification Card FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, 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 served proudly and with distinction; he hopes he is granted an upgrade to an honorable discharge. In a letter to his Member of Congress, he explains the circumstance surrounding his discharge. In effect, he contends he only went absent without leave (AWOL) in hopes of keeping his family together. He was assigned overseas 4 months after his first child was born and his wife stopped writing; he had to do something to save his family and his marriage. Since his release from the Army, he has volunteered for 9 years and has over a 1000 hours of volunteer service time with the VA. As he grows older, it is his desire to have an Honorable Discharge Certificate hanging proudly on his wall. 3. The applicant enlisted in the Regular Army on 16 March 1977. 4. The applicant’s record contains a DA Forms 2627 (Record of Proceedings Under Article 15, [Uniform Code of Military Justice] UCMJ) that show he received non-judicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for: * without authority, absenting himself without leave from his organization, on or about 9 June 1979 through on or about 23 June 1979 * without authority, absenting himself without leave from his organization, on or about 31 July 1979 through on or about 7 August 1979 * without authority, failing to go at the time prescribed to his appointed place of duty, on or about 15 October 1979 * without authority, absenting himself without leave from his organization, on or about 13 November 1979 through on or about 13 November 1979 5. The applicant was notified of his immediate commander's intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)). As reason for the initiation of separation proceedings, his commander noted he [the applicant] suffered from severe domestic problems and was unwilling to accept advice or assistance in dealing with his problems. The applicant acknowledged receipt of the proposed separation memorandum. He voluntarily consented to the discharge and waived his right to submit a statement in his own behalf. a. If a general discharge was being recommended, he acknowledged he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps. b. He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if an under honorable condition discharge, was issued to him. c. He acknowledged his understanding that he could, prior to the date the discharge authority approved his discharge, withdraw his voluntary consent to discharge. 6. Consistent with the chain of command recommendations, the separation authority approved the applicant’s separation action on 14 December 1979, under the provisions of Army Regulation 635-200, paragraph 5-31. He further directed the applicant be issued a General Discharge Certificate. 7. The applicant was discharged on 20 December 1979, following his completion of 2 years, 8 months and 4 days of total active service. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31h (2), by reason of his failure to maintain acceptable standards for retention, and his service was characterized as under honorable conditions (general). 8. Army Regulation 635-200 provided the authority for the separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of Honorable and General Discharge Certificates. 9. The applicant received several meritorious commendations of service, advancement in promotions, and an above standard enlisted evaluation report prior to his period of AWOL. 10. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance and provided evidence. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrades. The Board discussed his statement, his total service, the evaluation provided, the frequency and length of his absences and consideration for clemency. The Board determined that his character of service was appropriate considering the misconduct that led to his separation. 2. After review of the application and all supporting documents, the Board determined that relief was not warranted. 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. 5/31/2019 X CHAIRPERSON 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 three 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 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 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 provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 5-31 of the regulation in effect at the time provided for the discharge of enlisted personnel who had completed at least 6 months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this regulation were issued either a general or an honorable discharge. 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.