ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 November 2019 DOCKET NUMBER: AR20170001424 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge (GD) * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show separation of his first enlistment from his second enlistment period APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Certificate of Achievement * two Army Achievement Medal (AAM) Certificates * Command Sergeant Major's Award of Excellence Certificate * Army Good Conduct Medal (AGCM) Certificate * DA Form 638 (Recommendation for Award) * Honorable Discharge Certificate 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 states his discharge was inequitable because it was based on one isolated incident in his 5 years and 3 months of service. 3. The applicant provides two AAM Certificates awarded him for both meritorious service and achievement during his initial period of active duty service. He also provides an AGCM certificate awarded him exemplary behavior, efficiency and fidelity in active federal military service for the period 9 September 1987 through 8 September 1990. The AGCM and corresponding order are not contained in the applicant's official military personnel file (OMPF). 4. A review of the applicant's service record shows: a. He enlisted in the Regular Army (RA) on 9 September 1987 and continued to serve until he was honorably discharged on 12 September 1990, for the purpose of immediate reenlistment. He completed 3 years and 4 days of creditable active duty service. b. On 13 September 1990, the applicant reenlisted in the RA, for a two-year period. c. His DA Form 2-1 (Personnel Qualification Record) shows he was reported absent without leave (AWOL) from 29 July 1991 to 17 February 1993, totaling 566 days lost time. d. DD Form 458 (Charge Sheet, dated 19 February 1993 shows a court-martial charge was preferred against the applicant for being AWOL from 29 July 1991 to 17 February 1993. e. On 22 February 1993, after consulting with legal counsel, the applicant requested a discharge from the Army for the good of the service, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel. He acknowledged: * maximum punishment * he is guilty of the charges against him or of a lesser included offense * he did not desire further rehabilitation or further military service * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions and furnished an UOTHC Certificate * 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 undesirable discharge f. On 23 March 1993, the separation authority approved the applicant’s request for discharge for the good of the service. He directed the applicant's receipt of an UOTHC discharge and his reduction to the lowest enlisted grade. g. On 16 April 1993, he was discharged accordingly under the provisions of Army Regulation 635-200, chapter 10, by reason of "for the good of the service, in lieu of court martial." He completed 4 years and 19 days of active service with 566 days lost time. h. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was issued an UOTHC discharge and item 18 (Remarks) includes the entry "Immediate; Reenlistment This Period 870909 – 900912; 900913-920912." This document list the following awards: * Army Achievement Medal (2nd Award) * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar 5. By regulation, a discharge under the provision of AR 635-200, chapter 10 (For the Good of the Service) is a voluntary request for discharge in lieu of trial by court- martial. 6. The Board should 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 partial relief was warranted. Based upon the length of the AWOL offense which resulted in the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge was appropriate. However, the Board did note that the applicant did complete a prior period of honorable service, therefore, the Board recommended granting the portion of the request recognizing that prior period of honorable 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 9 September 1987 until 12 September 1990.” 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. 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, U.S. Code, 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, 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 provides that a member 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 in lieu of trial by court- martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is 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 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. 4. Army Regulation 635-8 (Separation Processing and Documents) prescribes the transition processing function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing required actions in the field to support processing personnel for separation and preparation of separation documents. Paragraph 5-6r (2) states to list the mandatory entry "SOLDIER (HAS) OR (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE" to assist the State in determining eligibility for unemployment compensation entitlement. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170001424 6 1