Army Board for Corerction of Military Records RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 May 2019 DOCKET NUMBER: AR20160015447 APPLICANT REQUESTS: The applicant requests upgrade of his under other than honorable conditions (UOTHC) characterization of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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 was treated unjustly by being lied to by his recruiter and told by his company commander to leave. 3. On 21 August 1979, at the age of 18, the applicant enlisted in the Regular Army. 4. On 15 April 1980, he received NJP for being absent without authority (AWOL) from on or about 14 March 1980 to on or about 14 April 1980. 5. On 17 September 1980, he again went AWOL and was subsequently dropped from the rolls. 6. On 20 May 1981, court-martial charges were preferred. He was charged with being AWOL from on or about 14 March 1980 through on or about 10 September 1980 and again from on or about 17 September 1980 to on or about 18 May 1981. 7. On 22 May 1981, he requested discharge for the good of the service in lieu of trial by court-martial. He acknowledged he understood the offense he was charged with. 8. On 5 June 1981, the separation authority approved the applicant’s request for discharge and directed that the applicant receive an UOTHC Discharge Certificate. 1. 9. On 26 June 1981, the applicant was discharged. His DD Form 214 shows he completed 8 months and 9 days of active service with 423 days of lost time and does not show any authorized awards. 10. His records show he went AWOL approximately 423 days. 11. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request 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. 12. In reaching its determination, the Board can 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the two lengthy AWOL offenses and the short term of service completed prior to misconduct beginning, the Board concluded that the characterization of service given at discharge was appropriate. 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. 5/15/2019 X CHAIRPERSON Signed by: 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 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 635-5 (Separation Documents) prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 of that regulation provides 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. 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. 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 1. 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.