ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20190004294 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from under other than honorable conditions to honorable or general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 (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, in effect, he was separated from active duty for being absent without leave (AWOL) on two occasions, once for 23 days and a second time for 8 days. His morale was very low due to the unit leadership and his inability to further his education while in the military. He would like to have his discharge upgraded, because he was treated unfairly by leadership, which affected his decision to go AWOL. 3. On 4 January 1978, the applicant enlisted in the Regular Army for 3 years. He held military occupational specialty (MOS) 12B (Combat Engineer). On 25 April 1978, he was assigned to Fort Carson, CO, with duties in his MOS. 4. He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on: a. 15 September 1978, for failure to go to his appointed place of duty at the time prescribed on 25 August 1978 and on the same date he absented himself from his place of duty without authority; also for having in his possession one ounce more or less of marijuana on 27 August 1978. His punishment consisted of extra duty, reduction to pay grade E-1 (suspended for 90 days), and a forfeiture of pay. b. 5 December 1978, for being AWOL from his unit from 27 October through 21 November 1978. His punishment consisted of a forfeiture of pay (suspended) and 30 days in correctional custody (unless punishment is appealed). This form shows the applicant failed to submit appellate matters, prior to going AWOL on 5 December 1978. 5. The applicant remained AWOL until he surrendered to military authorities at the Personnel Control Facility, Fort Carson, on 8 January 1979. 6. On 11 January 1979, court-martial charges were preferred against the applicant for the above period of AWOL. 7. On 12 January 1979, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him. The specific offense cited on his request for discharge is the above period of AWOL. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He submitted a statement in his own behalf indicating, in effect: a. He believed his attitude toward the Army would have been different and he may not have gone AWOL, if he had been allowed to complete his education. If he were returned to duty, he did not believe he could do a good job based on his mental condition. He went AWOL, because he was not doing the work he was trained to do. d. He was not given the chance to further his education and was experiencing dissatisfaction with his chain of command. He was not properly represented by his platoon leader when he was given his last Article 15. He wanted to get out of the Army, because he believed he was capable of doing better in civilian life. h. If he was given a chapter 10 discharge, he would complete high school and seek a career in restaurant or small business management. i. During the time served he had encountered problems that caused him great distress. He felt that getting out was the only way to alleviate the stress. 8. A Report of Medical Examination, dated 16 January 1979, shows the applicant was determined to be qualified for separation. 9. The applicant’s immediate and intermediate commanders recommended approval of the applicant’s request for discharge with the issuance of an under other than honorable conditions discharge. 10. The separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, with an under other than honorable conditions discharge. Accordingly, he was discharged on 23 February 1979. 11. His DD Form 214 shows he received an administrative discharge for conduct triable by court-martial with a characterization of service of under other than honorable conditions. He completed 11 months, and 21 days of total active service with 61 days of lost time. 12. Chapter 10 of AR 635-200 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 13. The applicant contends his discharge should be upgraded because he was treated unfairly by leadership, which affected his decision to go AWOL. The available evidence shows the applicant received two nonjudicial punishments for various offenses to include to include but not limited to being absent from his place of duty without authority, having in his possession one ounce more or less of marijuana, and for being AWOL from his unit from 27 October to 21 November 1978 and a second time from 5 December 1978 through 7 January 1979. 14. He completed almost 1 year of his 3 year enlistment obligation. 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 guidance. 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 upgrade requests. The Board considered his statement and overall record of service, the frequency and nature of his misconduct and whether to apply clemency. The Board found insufficient mitigating factors to overcome the misconduct and the applicant provided no post-service accomplishments or letters of support for consideration of clemency by the Board. The Board determined, based on the preponderance of evidence, that the character of service the applicant received at separation was not in error or unjust. 2. After reviewing 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. 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. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. Paragraph 3-7b states 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. 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 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. 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) AR20190004294 5 1