ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 16 September 2019 DOCKET NUMBER: AR20190009758 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge 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 served for 5 years. 3. The applicant completed 1 year, 9 months, and 20 days of honorable Regular Army (RA) from 29 August 1973 to 18 June 1975. He was issued a DD Form 214 (Report of Separation from Active Duty) for this period of service. 4. On 19 June 1975, he reenlisted in the RA for 6 years. He held military occupational specialty 11B (Light weapons Infantryman). On 14 June 1978, he voluntarily extended his 6 year enlistment period for 2 months to complete an overseas tour [location unknown]. He established a new expiration term of service (ETS) date of 18 August 1981. 5. On 24 January 1978, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 3 to 4 January 1978. His punishment consisted of reduction to pay grade E-3 (suspended for 120 days), a forfeiture of $100 pay, extra duty, and restriction [to begin on the date of leaving the Basic Noncommissioned Officer Course (BNCOC)]. 6. A letter addressed to 1st Personnel Command, Army Post Office New York, dated 4 June 1979, requests verification of the applicant’s dependents eligibility for identification cards/medical care. 7. On 24 July 1979, Headquarters, 1st Personnel Command, returned the request without action stating the applicant was dropped from the rolls (DFR) of the Army on 29 September 1978. His DFR packet was forwarded to Fort Benjamin Harrison, IN, by certified mail on 14 June 1979. 8. The complete facts and circumstances surrounding the applicant’s discharge process are not available for review with this case. However, his record contains the following documents: a. DD Form 214 that was prepared at the time of separation that shows on 23 May 1983, he was separated with an Under Other Than Honorable Conditions Discharge Certificate, in pay grade E-1. He completed 3 years, 2 months, and 10 days of active military service. He also completed 1 year, 9 months, and 20 days of prior active service and he had 1,080 days of lost time. Time lost after normal ETS date of 18 August 1981 equaled 640 days. His DD Form 214 also shows in: * (Separation Authority), Chapter 14, Army Regulation (AR) 635-200 * (Narrative Reason for Separation), Misconduct-Desertion b. Orders Number 67-7, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN, confirming he was assigned to Headquarters and Headquarters, 21st Adjutant General, Replacement Detachment, APO NY, for separation processing with an effective discharge date of 23 May 1983. 9. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities, and desertion or absence without leave. Action would be taken to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. 10. The applicant contends he served for 5 years and his under other than honorable conditions discharge should be upgraded to honorable. 11. The complete facts and circumstances surrounding his discharge process are not available for review with this case. However, his record contains a DD Form 214 that shows he was separated with an Under Other Than Honorable Conditions Discharge Certificate, in pay grade E-1. He completed 1 year, 9 months, and 20 days of prior active service, 3 years, 2 months, and 10 days of active service this period, and he had 1,080 days of lost time. 12. It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. He provided no evidence that would indicate the contrary. 13. He completed 3 years, 2 months, and 10 days of active military service. 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 the applicant’s statement, his record of service, the frequency and nature of his misconduct, the absence of a separation packet and the reason for his separation. The Bound insufficient evidence of in-service mitigation for the applicant’s absence and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found 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 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 sets forth the basic authority for the separation of enlisted personnel. a. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities, and desertion or absence without leave. Action would be taken to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. b. 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. 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) AR20190009758 6 1