ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 May 2019 DOCKET NUMBER: AR20170000833 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 that he was young, stupid and made a mistake. He did not return in time and was classified as absent without leave (AWOL). 3. A review of the applicant’s service record shows: a. He enlisted into the United States Army Reserve on 28 February 1995 and his date of entry onto active duty was 29 March 1995. b. He served at Fort Gordon, GA from 1 June to 11 September 1995 and 13-16 September 1995. c. His DD Form 2-1 (Personnel Qualification Record-Part II) and DA Form 4187 (Personnel Action), reflects his duty status changed as follows: * AWOL on 12-13 September 1995 * AWOL on 17 October 1995 * Dropped from the rolls on 16 November 1995 * Return to duty on 24 May 1996 * d. DD Form 458 (Charge Sheet) dated 17 November 1995 indicates he was charged with being absent from his unit without authority on or about 17 October 1995 with the intent to remain away permanently. e. DD Form 458 dated 3 June 1996 indicates he was charged with being absent from his unit without authority on or about 17 October 1995 to 24 May 1996. f. Orders 155-7, issued by the Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center, Fort Knox, KY on 3 June 1996, assigning him to the Special Processing Company, Fort Knox. g. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions * he acknowledged he understood 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 * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf h. His immediate commander recommended him to be court martialed with a bad conduct discharge. i. His intermediate commander recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge. He also recommended a court-martial under circumstances which could lead to a bad conduct or dishonorable discharge. j. The separation authority approved the applicant's request for voluntary discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge. k. He was discharged from active duty on 13 November 1996. He was discharged under the provisions of AR 635-200, chapter 10. He completed 1 year and 7 days of active service. His DD Form 214 shows he was awarded or authorized: a. * National Defense Service Medal * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge (Hand Grenade) * Marksman Marksmanship Qualification Badge (M-16) 4. By regulation, AR 635-200, the issuance of a discharge under the provisions of chapter 10, AR 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. 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, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/16/2019 CHAIRPERSON Signed by: 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 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 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 provides that 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. c. Chapter 10 of that regulation provided , in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. An undesirable discharge was normally considered appropriate. 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 (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 1. original discharge had been for the revised reason or had the upgraded service characterization.