ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 May 2019 DOCKET NUMBER: AR20170000633 APPLICANT REQUESTS: an upgrade of 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 that after 20 years and now that he is homeless, he would like to have his discharge upgraded from other than honorable conditions to honorable. The motto is not to leave a Veteran homeless. 3. A review of the applicant’s service records show: a. The applicant enlisted in the Regular Army on 28 November 1989. b. He accepted nonjudicial punishment on 17 September 1990 for being absent from his appointed place of duty. His punishment included reduction to private/E-1 and forfeiture of $168 pay (suspended until 16 November 1990). c. On 25 September 1990, his suspended punishment of forfeiture of $168 pay was vacated for the applicant failing to go to his appointed place of duty. d. Court-martial charges were preferred on the applicant on 16 November 1990. His DD Form 458 (Charge Sheet) indicates he was charged with four specifications of being a. absent from his appointed place of duty, one specification of intending to deceive/alter an official form, and two specifications of stealing the property of another Soldier. e. On 19 November 1990, subsequent to legal counsel, the applicant requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He acknowledged: * maximum punishment * he was guilty of the charges against him or of a lesser included offense * he did not desire further rehabilitation or desire further military service * if his request for discharge was accepted, he may be discharged under conditions other than honorable and furnished with an Under Other Than Honorable Discharge Certificate * as a result of the issuance of an under other than honorable conditions discharge, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge f. On 26 November 1990, a Bar to Reenlistment Certificate was approved on the applicant for receiving NJP and several counseling statements. g. Consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200 on 30 November 1990. He would be discharged under other than honorable conditions and reduced to the grade of private/E-1. h. The applicant was discharged from active duty on 14 December 1990 under the provisions of AR 635-200, chapter 10 with an other than honorable conditions characterization of service. His DD Form 214 shows he completed 1 year and 17 days of active service. It also shows he was awarded or authorized: * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar 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 for the good of the service. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. 1. 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 relief was not warranted. Based upon the short term of service completed prior to multiple UCMJ violations beginning, some involving serious criminal 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. 19980611 to 20010610.” 19980611 to 20010610.” 19980611 to 20010610.” 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. 1535874 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 that 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 of that regulation 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. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. 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 an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.