IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20190001194 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * 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: a. He enlisted at 17 years old and during advanced individual training (AIT) was in the wrong place at the wrong time with the wrong person. His rental truck broke down heading back to Fort Carson, CO. His friend said he was going to get a car which he thought was a rental. During the trip back to Fort Carson his friend wanted to stop at his family’s house, and he fell asleep in the car outside in the parking lot. He was awakened by the police department and found out the car was stolen. He was confined and did his time. The applicant was eventually returned to military control for discharge. b. He wanted to stay in the Army, but never spoke up at the discharge hearing. Since his discharge he has always worked full-time. He got married, raised 4 children, and helped raise his grandson. He has earned an Associate’s Degree in data processing as well as automotive repair. He also has a Master’s Degree and is Automotive Service Excellence recertified 4 times. In 2004 he moved to Florida to assist with his mother’s health care and finances. This is indicative of the kind of man that he is and his character. 3. On 22 March 1971, he enlisted in the Regular Army for a period of 3 years. The applicant did not complete AIT and was not awarded a military occupational specialty. 4. A review of his record shows while attending AIT he was absent without leave (AWOL) and dropped from the roles of the Army. 5. On 5 October 1971, he was in civilian confinement at the R. F. Kennedy Youth Center, Morgantown, Virginia, until 19 February 1973 for Interstate Transportation of a Motor Vehicle. 6. On 26 October 1973, while assigned to the Personnel Control Facility, he was medically cleared for administrative separation. 7. On 2 November 1973, court-martial charges were preferred against him for being AWOL on or about 10 September to 21 October 1973. 8. On the same date, the applicant voluntarily requested a discharge for the good of the service in-lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). a. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provisions of chapter 10, AR 635-200. He was also advised of the implications attached to his request for discharge. b. He submitted statements in his own behalf and stated in part, he entered the service for the wrong reasons. It was the only way his mother would let him quit high school and he had family problems. He further stated that he could not adapt to military life, nor could he live up to military standards. c. His chain of command recommended approval of his discharge request with the issuance of an Undesirable Discharge Certificate. d. The separation authority approved the applicant’s discharge request for the good of the service with an Undesirable Discharge Certificate. 9. On 21 November 1973, the applicant was discharged accordingly. He completed 11 months and 6 days of net service. He had 635 days of lost time. The applicant was not awarded a personal decoration. 10. In June 1982, the Army Discharge Review Board denied the applicant’s request for a change in the type and nature of his discharge. 11. The record contains no indication of procedural or other errors that would tend to have jeopardized the applicant’s rights. 12. Army Regulation 635-200 states that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 13. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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 record, 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 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) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 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. 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, 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190001194 5 ABCMR Record of Proceedings (cont) AR20190001194 1