ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20170011846


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge.  

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 believes that he qualifies for an upgrade having waited the sufficient amount of time required for an upgrade.  

3.  A review of the applicant’s record shows:

	a.  He enlisted in the Regular Army (RA) on 29 March 1990.

	b.  He had continuous service in the RA through two extensions to meet his service requirement for overseas tour obligation and then an immediate reenlistment on 16 February 1994 for a period of five years.  

	c.  On 22 December 1997, he received a memorandum of reprimand for striking a parked, unattended vehicle while driving intoxicated.  Consistent with the chain of command recommendation, on 10 June 1998, the memorandum of reprimand was filed in his Official Military Personnel File.  

	c.  On 25 February 1999, court-martial charges were preferred against him.  His DD Form 458 (Charge Sheet) indicates he was charged with one specification of absence without leave from 24 December 1998 to 17 February 1999.  

	d.  On 25 February 1999, after consulting with legal counsel, he subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge in Lieu Trial By Court-Martial).  He acknowledged:

* maximum punishment
* he is guilty of the charge against him or of a lesser included offense
* he did not desire further rehabilitation
* he understood that if his request for discharge was accepted he could be discharged under conditions other than honorable
* he may be deprived of his rights and benefits of a veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge

	e.  On 12 July 1999, the separation approval authority approved the applicant’s request for discharge in lieu of court-martial.  He would be discharge with an under other than honorable conditions discharge.  

	f.  On 26 July 1999, he was discharged from active duty under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions discharge and was reduced to the PVT/E-1.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects he completed 9 years, 2 months, and 3 days of active service with 55 days lost time from 24 December 1998 to 16 February 1999.  

	g.  On 12 November 2004, the Army Discharge Review Board determined that he was properly and equitably discharged.  His request for a change in the character of his discharge was denied.  

4.  By regulation, 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 in lieu of trial by court-martial.  A discharge under other than honorable conditions normally is appropriate for a soldier who is discharged for the good of the service.  

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 seriousness of the DUI and the length of the AWOL offense, as well as 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 there was insufficient evidence to show that an upgrade to the characterization of service was warranted.

However, the Board did note that the applicant had a prior period of honorable service which was not reflected on his DD Form 214 and recommended that change be completed to more accurately depict the military service of the applicant.

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 14 February 1990 until 13 February 1994.”
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.  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 (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 soldier’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 soldier whose military record is satisfactory by not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 (Discharge in Lieu of Trial by Court-Martial) states 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 in lieu of trial by court-martial.  A discharge under other than honorable conditions normally is appropriate for a soldier who is discharged for the good of the service.  

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 the 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, 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 upgrade service characterization.  

ABCMR Record of Proceedings (cont)	 AR20170011846


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