ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 October 2019 DOCKET NUMBER: AR20170001098 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge to an honorable or general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States). 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 (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 stated that he has no prior conviction and sustain an honorable life style since his discharge from the military, he can't take back things he done in the pass, but he can learn from the pass, he deserves a second chance. 3. Review of the applicant’s service record shows: a. Having had prior service in the Army Reserve he joined the Regular Army on 15 July 1980, he immediately reenlisted on 31 January 1983. He held the military occupational specialty of Supply Specialist (76Y). He was assigned to the 178th Signal Company, 43rd Signal Battalion, Germany on 15 November 1981 to 3 April 1985. b. The DA Form 4187 (Personnel Actions) shows his duty status changed on: * 29 September 1984, from present for duty to absent to without leave (AWOL) * 1 November 1984, from AWOL to present for duty to dropped from rolls (DFR) * 3 April 1985, from DFR to present for duty, he surrendered to military authorities at Fort Dix, NJ c. His two DD Form 458 (Charge Sheet), dated 7 November 1984, shows charges were preferred against him for one specifications of being AWOL on 29 September 1984. The Charge Sheet, dated 19 April 1985, shows charges were preferred against him for one specifications of being AWOL on 29 September 1984 to 3 April 1985. d. On 19 April 1985, he consulted with legal counsel and subsequently requested discharge for being AWOL, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, discharge for the good of the Service. He acknowledged: * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions * he would be deprived of many or all Army benefits administrated by the Veterans Administration * 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 other than honorable conditions discharge e. On 5 June 1985, consistent with applicant’s request and the chain of command recommendation, the separation approval authority approved the applicant’s request for discharge for the good of the Service. He would be furnished an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade. f. On 30 July 1985, he was discharged from active duty under the provisions of AR 635-200, chapter 10, discharge for the good of the service, with a characterization of under other than honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 year, and 6 months, and 12 days active service this period and 27 days prior active service. He had lost time from 29 September 1984 to 2 April 1985. 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation AR 635-200, chapter 10 an individual 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. The request may be submitted at any time after charges have been preferred. An under other than honorable discharge certificate will normally be furnished an individual who is discharged for the good of the service. Paragraph 3-7c states that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may .be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service. 6. By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. 7. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider in making a clemency determination. He was remorseful with his application. However, based upon a preponderance of evidence, the lengthy period of AWOL, and the absence of mitigating factors to support clemency, the Board determined that the applicant's discharge characterization was warranted as a result of the misconduct; it was not in error or unjust. The Board did note that the applicant had a prior period of honorable service which is 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 15 July 1980 until 30 January 1983.” 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. 1/15/2020 X 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 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 (Personnel Separations – Enlisted Personnel), in effect at the time, provides 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 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 (General discharge) states a general discharge is 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. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. 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 original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//