IN THE CASE OF: BOARD DATE: 14 May 2021 DOCKET NUMBER: AR20210005763 APPLICANT REQUESTS: The applicant requests the upgrade of his under honorable conditions (general) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, on his DD Form 149 and DD Form 293, states he feels that 30 years is long enough to pay for a stupid mistake when he was an immature and young. He wishes to use his GI Bill to return to school. He is 50 years old and he desires to go back to school and asks his discharge be upgraded so he can use his GI Bill. He made a bad decision while in the Army when he was young and immature. He has been paying for his mistake for 30 years. He does not believe he should be punished for the rest of his life for mistakes he made when he was young. 3. On 22 February 1988, the applicant, at the age of 18 years, enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for a period of 8 years. On 15 September 1988, he was discharged from the USAR DEP and entered the Regular Army for a period of 4 years. 4. Throughout the applicant's first assignment, he received three dishonored check notifications; however, the copy within his service record is unreadable. On 24 July 1991, the applicant received a memorandum stating his check cashing privileges were suspended (fourth offense). 5. On 15 August 1991, the applicant received a counseling statement for using a meal card while knowingly receiving separate rations, which was considered to be larceny and under the Uniform Code of Military Justice (UCMJ) could result in confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. It was recommended that the applicant receive a Field Grade Article 15 and be administratively discharged. The applicant concurred with the counseling statement. 6. On 19 August 1991 the applicant's status was changed from present for duty (PDY) to absent without leave (AWOL). On 18 September 1991, the applicant's status was changed from AWOL to PDY. On 17 September 1991, the applicant completed a pay adjustment authorization, which states he was AWOL without funds and authorized the cost of travel issued in his behalf be charged to his pay account. 7. On 9 October 1991, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for larceny of government property and for AWOL from on or about 19 August 1991 to on or about 17 September 1991. His punishment was reduction to the grade of Private/E-1 (PVT) and 45 days of extra duty. The applicant did not appeal the punishment. 8. On 16 October 1991, the applicant's commander advised him of his intent to separate him under paragraph 14-12c (Commission of a Serious Offense), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). The commander's action was based on the applicant's AWOL. 9. On 16 October 1991, after consulting with counsel, the applicant acknowledged counsel had informed him of the basis for and the effects of the contemplated separation action; counsel also advised the applicant of the rights available to him as well as the consequences of waiving those rights. The applicant elected not to submit statements in his own behalf. 10. On 21 October 1991, the separation authority directed the applicant's discharge with an under honorable conditions (general) discharge. On 29 October 1991, the applicant was discharged accordingly. His DD Form 214 shows he completed a total of 3 years and 16 days of net active duty service. It shows dates of lost time from 19 August 1991 through 17 September 1991. 11. During the applicant's era of service, commanders could initiate separation for commission of a serious military or civil offense, if the specific circumstances of the offense warranted separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial. The Manual for Courts-Martial, in effect at the time, showed punitive discharges among the maximum punishments for AWOL of 30 days or more. 12. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency 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 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 :XX :XX :XX 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 ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was separation with honor and was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that a lesser characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could still be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 14-12c applied to Soldiers who had committed a serious military or civilian offense where the specific circumstances warranted separation and the UCMJ authorized a punitive (i.e. bad conduct or dishonorable) discharge. 3. The Manual for Courts-Martial, in effect at the time, showed a punitive discharge among the maximum punishment for AWOL 30 day or over. 4. 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 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. 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) AR20210005763 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210005763 5 ABCMR Record of Proceedings (cont) AR20210005763 4