ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 September 2019 DOCKET NUMBER: AR20160018670 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) * self-authored statement 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 realized that breaking the law at Camp Campbell was wrong, he is sorry for his crime. He served his time and he is a changed man. He’s an American citizen and he need to be able to seek employment for his family. He has made restitution in full to the United States government. The only one hurt in this ordeal was he and his family, he would like to put this chapter of his life behind him forever. 3. The applicant provides a self-authored statement, which states he was young and did not fully understand his actions. All the money has been paid in full and 30 years has passed. He need to be his discharge upgraded to honorable so he may live out the rest of his day in peace. 4. A review of the applicant’s service record shows: a. Having had prior service in the Army Reserve Delayed Entry Program, he enlisted in the Regular Army on 9 September 1982. He was honorably discharged on 27 January 1985 for immediate reenlistment. b. His DD for 458 (Charge Sheet), reflects court-martial charges were preferred against the applicant on 27 October 1988 for one specification of being absent without leave from 2 August 1988 to 18 August 1988, one specification of wrongfully and unlawfully make and uttered certain checks that he did not have sufficient funds to make payments. c. On 1 November 1988, he requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of court martial. d. He was informed of his rights to legal counsel and he consulted with legal counsel on 1 November 1988. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. e. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that: * by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of an undesirable discharge * he acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he was advised he could submit any statements he desired in his own behalf, he submitted a statement in his own behalf f. He made the following statement in summary on his own behalf that he understood his actions were unbecoming of a noncommissioned officer (NCO, and he was respectfully sorry. Knowing that he lost all of his military career, he requested a general discharge. The chapter 10 alone will do enough damage to his future goals. A chapter 10, discharged under the conditions of other than honorable would destroy his chances of ever holding steady employment. His past military record clearly reflected that he was an outstanding NCO and a good Soldier. This offense was a bad mistake and does not reflect him as a person. g. Consistent with the applicant’s request and his chain of command recommendations, on 2 November 1988, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 10, in lieu of court martial and directed that he be reduced to the lowest enlisted grade furnished an under other than honorable conditions discharge. h. The applicant was discharged on 7 November 1988. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service - in lieu of trial by court martial. His characterization of service is under other than honorable conditions. He completed 6 years, 5 months and 10 days of net active service this period with lost time from 19 June 1988 to 28 June 1988, 2 August 1988 to 17 August 1988, and 18 August 1988 to 7 November 1988. 5. The Army Discharge Review Board (ADRB), by letter, on 13 January 1997, to the applicant in response to his request to change his character and/or reason of his discharge. After careful consideration of his military records and all other available evidence, the ADRB determined that he was properly and equitably discharged and denied his request. The ADRB advised the applicant that he may reapply to the ADRB for a personal appearance hearing and/or apply to the ABCMR. 6. By law and AR 635-200, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. 7. By regulation, a member who has committed an offense 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. 8. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 9. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 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 partial relief was warranted. Based upon the lengthy period of honorable service completed prior to a short period misconduct, as well as the type of misconduct which led to the applicant’s separation, the Board concluded that granting clemency by upgrading the applicant’s characterization of service to Under Honorable Conditions (General) was appropriate. Additionally, the Board noted that the applicant had completed a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that corrected to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 2. The Board also found that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 9 September 1982 until 27 January 1985.” 3. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to Honorable. 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. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor. 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. b. Paragraph 3-7b (General discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10-1, provides that a Soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 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 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. 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) AR20160018670 5 1