ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:     29 March 2019

	DOCKET NUMBER:  AR20160015561


APPLICANT REQUESTS:  The applicant requests his discharge under other than honorable conditions (UOTHC) be upgraded to a general under honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of 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:

	a.  He enlisted into the Army on 21 January 1980.  He completed Boot Camp (basic training) and AIT (advanced individual training) in April 1980.  He went on leave after training and married his high school sweetheart.  After he completed his leave, he went to his first duty station at Fort Ord, CA.  He was an Infantryman.  He loved his job and wanted nothing but to serve his country with honor and dignity, which he was getting the opportunity to do.  

	b.  In January 1982, he moved to his next duty station in Alaska.  His wife was home back in Magnolia, MS, about to give birth to his first born.  He was looking forward to becoming a father.  He requested leave to be home with his wife in February 1982.  His wife was having a difficult time with the birth of their child, and he did not want to leave her alone.  His leave was coming to an end and he made the decision to stay with his wife, during her difficult time.  Medicine was so different during that time and he was scared for his wife and child.  He did not want to leave them alone.  He knows that his decision was not the best but his young adult mind was doing the right thing for his family. 

	c.  He took full responsibility for his actions; he reported to Fort Bragg, NC for court-martial.  In April 1982, he was given an other than honorable conditions discharge.  He served his country proudly for over two years and would have completed four years or more, if he was not placed in that predicament with his wife and child.  He should have made a smarter decision, but unfortunately, he did not, which he regrets.  He now finds himself at the mercy of the Review Board trying to get his discharge upgraded.  

3.  On 21 January 1980, at the age of 23, the applicant enlisted in the Regular Army for a period of 4 years.  A review of his records show he was fast-tracking and promoted to 
private first class (PFC)/E-3 on 1 November 1980 with a waiver. 

5.  On 1 November 1981, the applicant departed his unit on ordinary leave and did not return on the prescribed date.  He was reported as absent without leave (AWOL) and he was subsequently dropped from the rolls.  

6.  On 1 February 1982, the applicant was apprehended by civilian authorities in Magnolia, MS and returned to military control on 4 February 1982. 

7.  On 16 February 1982, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 24 November 1981 and remaining absent until 1 February 1982, 2 months and 8 days.  

8.  On 17 February 1982, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 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 Army Regulation 635-200, chapter 10.  He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits.  He signed a request for discharge for the good of the service and indicated he would not submit statements in his own behalf.

9.  The applicant's chain of command recommended approval of his request and the case was legally reviewed.  The appropriate separation authority approved the applicant's request, directing the applicant be reduced to the grade private (PV1/E1) and he be issued a discharge under other than honorable conditions.  

10.  On 7 April 1982, he was discharged accordingly, his service was characterized as UOTHC.  He completed 2 years and 9 days of net active service this period.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:

* he was awarded or authorized the M-16 Rifle and hand grenade qualification badges and the Army Service Ribbon
* Lost time:  2 months and 8 days

11.  The applicant states he knows that his decision to go AWOL was not the best but his young adult mind but he was scared and did not want to leave his wife alone during her pregnancy complications.  His record shows he was promoted to PFC/E3 with a waiver and initially departed on approved ordinary leave; although he failed to give his command the opportunity to extend his leave his record is void of any other misconduct at the age of 23 and was AWOL for 2 months and 8 days.  

12.  In reaching its determination, the Board can consider the applicant’s age at the time of his misconduct, his petition, and service record in accordance with the published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was warranted.  Based upon the type of misconduct which resulted in the discharge, the justification for the misconduct provided by the former service member (FSM), as well as the FSM taking responsibility for the misconduct by self-reporting to military installation to turn himself in, the Board found that relief was warranted.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:x	:x	:x	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 for the period ending 7 April 1982 to reflect the characterization of his service as "UNDER HONORABLE CONDITIONS."
	 
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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel, it states:

	a.  A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service.  The request could be submitted at any time after the charges had been preferred.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate.  

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	d.  When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade.

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. 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. 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.

ABCMR Record of Proceedings (cont)	 AR20160015561


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