ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  10 July 2019

	DOCKET NUMBER:  AR20180016818


APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* National Personnel Records Center (NPRC)
* Applicants’ service records
* DD Form 214 (Report of Separation from Active Duty)

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 young, ignorant, hard headed and went absent without leave (AWOL).  He did not have anyone to talk to concerning the issues he was dealing with personally and emotionally.  He was always treated with respect, but he was also not ready to commit, therefore, he went AWOL without thinking of the severity or
consequences of his actions.  Prior to going AWOL, he had a good record and was a good Soldier with nothing against him.  He did as he was told to do and followed all rules and regulations.  

3.  The applicant provided his service records he received from the NPRC consisting of his DD Form 4 (Enlistment Contract – Armed Forces on the U.S.), medical records, DA Form 20 (Enlisted Qualification Record), Special Orders Number 170, dated 29 August 1974 (separation order), and DD Form 214.

4.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 5 December 1973.  
	b.  On 12 July 1974, court-Martial charges were preferred against him.  His DD Form 458 (Charge Sheet), shows he was charged with being AWOL from 16 April to 10 July 1974.

	c.  On 15 July 1974, he consulted with counsel and was advised of his rights.  Following consultation with legal counsel.  He was advised of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice, the significance of his suspended sentence to a bad conduct or dishonorable discharge; of the possible effects of an undesirable discharge, if this request approved; and of the procedures and rights available to him.  Following this consult, voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service.  He submitted a statement in his own behalf.  He further acknowledged:

* he understood that if his discharge request was accepted, he could be discharged under other than honorable conditions with an undesirable discharge certificate
* he could be deprived of many or all Army benefits and could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws and may encounter substantial prejudice in civilian life

	d.  On 15 July 1974, he stated in his statement that he did not like the Army .  He is in the military because he let the recruiter out talk him with papers already filled out.  He cannot live this type of life.  Things got so bad that he had to see a neurologist or psyco (i.e. psychiatrist or psychologist) several times in OK.  The Army did not have anything to offer him. He hated to take orders and be shoved around all the time.  The Army is just like signing a death certificate.  He would prefer to be free.  He provided a detailed self-authored hand written letter of why he did not want to remain in the military (detailed letter enclosed in packet).  

	e.  FB Form 2408 (Checklist for screening records), dated 18 July 1974, shows he was AWOL from 12-13 March 1974 for an unknown action.

	f.  On 22 July 1974, a mental status evaluation was conducted.  The examiner determined he had the mental capacity to understand and participate in proceedings, and was mentally responsible.

	g.  On 25 and 31 July 1974, his immediate and intermediate commanders recommended approval to discharge the applicant with an Undesirable Discharge Certificate.

	h.  On 7 August 1974, the staff judge advocate informed the separation authority that the request for discharge was within the preview of chapter 10, AR 635-200 and recommended approval with an undesirable discharge.

	i.  On 9 August 1974, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service with an undesirable discharge certificate.

	j.  On 29 August 1974, the applicant was discharged from active duty.  He was discharged under the provisions of AR 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an under other than honorable conditions discharge.  He completed 4 months and 28 days of active service with 87 days of lost time.  His DD Form 214 shows he was awarded or authorized the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge. 
(M-16).

5.  By regulation (AR 635-200), a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  The issuance of a discharge requires a Soldier to voluntarily, willingly, and in writing, request discharge from the Army in lieu of a trial by court-martial.  

6.  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 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 short term of honorable service completed prior to a lengthy AWOL offense which resulted in 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.


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 (Personnel Separations – 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 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 1-9e,( 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.  The recipient of a general discharge is normally a member whose military record and performance is satisfactory.

	c.  Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service.  An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the service.  However, the discharge authority may direct an honorable or general discharge if such are merited by the member’s overall record during the current enlistment.

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)	AR20180016818


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