ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  8 August 2019

	DOCKET NUMBER:  AR20170001145


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge 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 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 his under other than honorable conditions discharge should be changed to a general discharge due to an error that he reported back in Fort Sill, OK, like he was instructed to do.  He was instructed once he turned himself in without having any criminal convictions, that his discharge would change to a general.  He states that he followed all of the rules that were stated in order to receive a general under honorable conditions discharge. 

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

	a.  He enlisted into the Regular Army on 15 November 1990.

	b.  He served in Korea from 7 March 1991 to 3 March 1992.

	c.  His duty status was changed due to him being absent without leave (AWOL), effective 11 January 1994. It was then changed from AWOL to dropped from the rolls effective 10 February 1994.

	d.  DD Form 553, (Deserter / Absentee Wanted by the Armed Forces), he became a deserter and wanted by the Armed Forces on 11 March1994.

	e.  On 9 March 1995 the applicant was apprehended and returned to military control. 

	f.  Court-martial charges were preferred on the applicant on 17 March 1995.  His DD Form 458 (Charge Sheet) indicates he was charged with one specification of AWOL from 11 January 1994 to 13 March 1995.

	g.  He consulted with legal counsel on 17 March 1995 who advised him of the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  In his request for discharge, he acknowledged:

* he was making the request of his own free will and he had not been subjected to any coercion
* by submitting this request he was acknowledging he was guilty of the charge(s) against him or a lesser included offense
* he understood that if the discharge request was approved he could be furnished an under other than honorable discharge
* he understood if such a discharge 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 could be deprived of his rights and benefits as a veteran under both Federal and State laws

	h.  Consistent with the chain of command recommendations, on 3 May 1995, the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be discharged under the provisions of AR 635-200, chapter 10 with an under other than honorable conditions.

	k.  On 22 May 1995, he was discharged from active duty under the provisions of AR 635-200, chapter 10 with an under other than honorable conditions characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years and 5 months of active service with 426 days of lost time from 11 January 1994 to 13 March 1995.  It also shows he was awarded or authorized:

* National Defense Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar

4.  By regulation (AR 635-200, chapter 10), a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An under other than honorable conditions discharge is appropriate under this chapter

5.  On 22 October 2007, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable.  The ADRB denied his request for an upgrade of his discharge. 

6.  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 warranted.  Based upon the lengthy period of honorable service completed prior to the AWOL offense, the Board concluded that granting clemency to the applicant by upgrading his characterization of service to Under Honorable Conditions (General) was appropriate.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).
	 
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 (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 and entitle the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	b.  Paragraph 3-7b (General Discharge) was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military records was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 stated a member who was charged with an offense or offenses for which the authority punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual’s admission of guilt.  Although an honorable or general discharge was authorized, an under than honorable conditions discharge was normally furnished an individual who was 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 (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)	 AR20170001145


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