IN THE CASE OF:  

BOARD DATE:  21 August 2020

DOCKET NUMBER:  AR20200000935


APPLICANT REQUESTS:  The 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 (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 26 years ago his fiancé at the time was pregnant and started 
having complications.  She had asked him to come home because she was having 
issues.  He went to his sergeant and he refused to let him go.  So he went to the 
chaplain at the time to get some guidance.  He made the decision to be with his fiancé 
and she lost the baby.  The military always preaching honor.  He thought he was 
honoring his family by going home to take care of his family.  He turned himself in and 
this is where he is today.  

3.  On 14 February 1991, the applicant enlisted in the Regular Army for a period of 
4 years.        

4.  On 28 April 1994, a Personnel Action form shows his duty status was changed from 
present for duty to absent without leave (AWOL).  He was dropped from unit rolls 
effective 31 May 1994.  

5.  On 29 August 1994, his duty status was changed from dropped from unit rolls to 
attached/return to military control.  The applicant surrendered to military authorities in 
Fort Polk, Louisiana.  

6.  On 31 August 1994, court-martial charges were preferred against the applicant for 
being AWOL from on or about 28 April to 29 August 1994.  

	a.  On 1 September 1994, the applicant voluntarily requested discharge in lieu of trial 
by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), chapter 10.  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 provision of AR 635-200, chapter 10.  The 
applicant elected not to submit a statement in his own behalf, and did not desire a 
physical evaluation prior to separation.    

	b.  The applicant's chain of command recommended approval of his request and 
there were no legal objections to the further processing in accordance with the unit 
commander’s recommendations.  

	c.  On 29 September 1994, the appropriate separation authority approved the 
applicant's request directing he be reduced to the rank/grade of private one (PV1)/E-1 
and he be furnished an UOTHC discharge.    

7.  On 18 October 1994, the applicant was discharged accordingly.  His service was 
characterized as UOTHC.  He completed 3 years, 4 months, and 3 days of net active 
service this period.  He had lost time from 28 April to 29 August 1994.  His DD Form 
214 also shows he was awarded or authorized the:  

*	Army Commendation Medal
*	National Defense Service Medal
*	Southwest Asia Service Medal
*	Army Service Ribbon
*	Driver and Mechanic Badge
*	Sharpshooter Marksmanship Badge with Rifle Bar (M-16)
*	Expert Marksmanship Badge with Grenade Bar

8.  AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by 
court martial.  In pertinent part, the regulation states 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 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.  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.  

9.  In reaching its determination, the Board can consider the applicant’s petition and 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.


BOARD DISCUSSION:

The Board carefully considered the applicant's request, evidence in the records, and 
published Department of Defense 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 reason for his separation, and whether to 
apply clemency. The Board found insufficient evidence of in-service mitigating factors 
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.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XXX	:XXX	:XXX	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 3 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.  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 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.  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 regarding equity, injustice or clemency determinations.

	a.  Clemency generally refers to relief specifically granted from a criminal sentence 
and BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds.  

	b.  The 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, an injustice, or clemency 
grounds, BCMRs shall consider the twelve stated principles in the guidance as well as 
eighteen individual factors related to the applicant.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20200000935


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20200000935


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ABCMR Record of Proceedings (cont)	AR20200000935


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