ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 April 2019

	DOCKET NUMBER:  AR20170000042


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  Claims Incident Thereto).  However, the Army Board for Correction of Military Records (ABCMR) 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 his brother needed a kidney so he decided to go absent without leave (AWOL); it was an emergency.  He was young and did not understand the consequences of his actions.  He seeks an upgrade now because he needs help with housing and other services.

3.  The applicant's service records show:

	a.  He enlisted in the Regular Army on 8 July 1981 for a 4-year term at 18 years of age.  Effective 1 August 1983, he was promoted to specialist four (SP4).

	b.  On 13 November 1983, he was reassigned from Germany to Fort Bragg, NC.  On 5 April 1984, he received a letter of commendation for his performance during a unit exercise.

	c.  On 9 May 1984, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty at the time prescribed.  

	d.  Orders awarded him the Army Good Conduct Medal (1st Award) for the period 9 July 1981 through 8 July 1984.

	e.  He accepted NJP on or about 6 August 1984; however, because a copy of the associated DA Form 2627 (Record of Proceedings under Article 15, UCMJ) is not available, the reason for this action is not known.  His punishment included a suspended reduction from SP4 to private first class (PFC); on 11 September 1984, the applicant's commander vacated the suspension and reduced him based on the applicant's absence from his place of duty on 1 September 1984.  

	f.  On 9 October 1984, the applicant accepted NJP for being AWOL from 21 until 25 September 1984.  

	g.  On 26 October 1984, he departed his Fort Bragg unit in an AWOL status and his unit dropped him from Army rolls on 25 November 1984.  

		(1)  On 20 May 1987, civil authority arrested him for embezzlement.  On 10 August 1987, he appeared in civil court; the court gave him probation for 5 years.  Civil authority released him from confinement, but the applicant failed to return to his unit.  

		(2)  The applicant surrendered to civil authority on 10 September 1987 because of an assault charge; the civil authority confined him in a county jail.  On 24 September 1987, a civil court ordered him to pay restitution and released him to military authority.  Orders transferred him to the U.S. Army Personnel Control Facility (PCF) at Fort Knox, KY; he arrived on or about 28 September 1987.

	h.  On 30 September 1987, his PCF commander preferred court-martial charges against him for two periods of AWOL:  26 October 1984 until 10 August 1987 and 10 August 1987 until 24 September 1987 (a total of 2 years, 10 months, and 29 days).  That same date, after consulting with counsel, the applicant requested discharge under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  In his request, he affirmed no one subjected him to coercion and counsel had advised him of the implications of his request.  He also acknowledged he was guilty of the charge.  He elected not to submit a statement in his own behalf.

	i.  On 6 October 1987, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions; he also directed the applicant's reduction to private/E-1.  On 30 October 1987, he was discharged accordingly.  His DD Form 214 showed he was awarded or authorized the Army Good Conduct Medal (1st Award), Army Service Ribbon, Overseas Service Ribbon, and two marksmanship qualification badges.

4.  The applicant initially earned promotions and was awarded the Army Good Conduct Medal (1st Award).  After accepting NJP for a 4-day AWOL, he departed his unit and remained absent for over 2 years and 10 months.  He states his reason for going AWOL was his brother needed a kidney.  Discharges under chapter 10, AR 635-200 were voluntary, and were available in lieu of trial by court-martial once charges had been preferred.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published 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 multiple UCMJ and civilian criminal offenses, some involving serious misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommended denying the applicant’s request for relief.

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.
	 
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 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  

2.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a stated an honorable discharge was separation with honor.  Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate.  Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense.  An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time.  It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor.

	b.  Paragraph 3-7b stated 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.

	c.  Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges had been preferred.  A discharge under other than honorable conditions was normally considered appropriate.

3.  AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions.  Paragraph 6-11 (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade.

4.  The Maximum Punishment Chart in the Manual for Courts-Martial, in effect at the time, showed the punishments for violation of Article 86 (AWOL for more than 30 days), UCMJ, included a bad conduct discharge; if terminated by an apprehension, it added a dishonorable discharge.

5.  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 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.


ABCMR Record of Proceedings (cont)	 AR20170000042


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