ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  28 June 2019

	DOCKET NUMBER:  AR20160018913


APPLICANT REQUESTS: reconsideration of his previous request to upgrade his under other than 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)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2120013873, on 13 December 2012. 

2.  The applicant states:

* he served our country and was willing to fight for it
* he was young and got married but did not know where to go for help 
* he has been a good citizen for many years and he deserves an honorable discharge 
* he wanted to go back to Korea but they did not let him go back 
* the Board already upgraded his discharge but it was the wrong person 

3.  Review of the applicant's service records shows: 

	a.  He enlisted in the Regular Army on 11 March 1980.  He held a combat engineer specialty and he was advanced to specialist four/E-4.  He reenlisted on 8 November 1982.

	b.  On 9 May 1984, he accepted nonjudicial punishment for five incidents of failure to go at the prescribed time to his appointed place of duty.  His punishment consisted of reduction to E-3 (suspended for 90 days) and forfeiture of pay.

	c.  On 27 June 1984, his unit (Denver Military Entrance Processing Station) reported him absent without leave (AWOL).  He ultimately returned to military control on or about 7 June 1985.  

	d.  On 12 August 1985, court-martial charges were preferred against him.  His DD Form 458 (Charge Sheet) shows he was charged with one specification of AWOL from on or about 27 June 1984 to 7 June 1985.

	e.  On 14 August 1985, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits
* he acknowledged he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated that under no circumstances did he desire further rehabilitation or to perform further military service

	f.  Consistent with the chain of command's recommendations, on 20 August 1985, the separation authority approved the applicant's request for discharge for the good of the service, reduced him to the lowest enlisted grade, and directed that he be issued a Under Other Than Honorable Conditions Discharge Certificate.  

	g.  The applicant was discharged from active duty on 26 September 1985.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 10 of AR 635-200, for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 4 years and 7 months of active service during this period and he had lost time on 2 May 1984 and from 27 June 1984 to 6 June 1985. 

	h.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Army Service Ribbon, Army Achievement Medal, Good Conduct Medal, Marksman Marksmanship Qualification Badge with Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with Grenade Bar. 

	i.  Item 18 (Remarks) shows his immediate reenlistment and excess leave but not his continuous honorable active service. 

	j.  On 6 March 1998, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  The ADRB denied the applicant’s request for an upgrade of his discharge.

	k.  On 13 December 2012, the ABCMR also reviewed his discharge but found no error or injustice.  The Board denied his request for an upgrade of his discharge.

4.  By regulation, discharges under the provision of AR 635-200, chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court-martial.  An under other than honorable conditions characterization of service is appropriate.

5.  In reaching its determination, the Board can 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 AWOL offense and a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, the Board concluded that the characterization of service received at the time of discharge was appropriate.

However, the Board did note that the applicant had a prior period of honorable service which was not currently reflected on his DD Form 214 and recommended that change be completed 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 adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 11 March 1980 until 7 November 1982.”
2.  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.
	 
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.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in 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 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 UOTHC is normally considered appropriate.

	a. Paragraph 3-7a provides that 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.

	b.  Paragraph 3-7b states 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.  

2.  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.

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).


ABCMR Record of Proceedings (cont)	 AR20160018913


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