ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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	BOARD DATE:  2 July 2019

	DOCKET NUMBER:  AR20170001540


APPLICANT REQUESTS: upgrade of his under other than honorable discharge to 
honorable and personal appearance before the Board. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	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 he graduated advanced individual training at Fort Knox, KY in 
August 1997.  He departed home on leave en route to Korea.  His spouse informed him 
she was pregnant and desired a divorce.  He phoned the contact information listed in 
his orders but, was advised to seek assistance from his chain of command.  He called 
the unit he departed and informed he needed to contact his gaining command.  He was 
unable to establish contact with his gaining command and elected to phone his 
congressional representative.  His congressional representative was not able to assist 
either.  Though all of the attempts to have his leave extend he missed movement and 
was not able to determine how to get transportation to Korea.  He remained absent 
without leave (AWOL) for August 1997 to December 1998 and then traveled to Fort 
Knox to turn himself in.  He was immediately processed for separation from the military.  
Upon his return home, he began the long process of enlisting in the military again.  He 
began with the Maine Army National Guard, spent two years there before getting a 
conditional release back to active duty Army.  He is currently a sergeant first class with 
over 17 years and a stellar career.  He wants to rectify the blemish on his record and 
has worked hard over the past 20 years to do so.



3.  The applicant’s service records shows:

	a.  He enlisted in the Regular Army on 5 February 1997.

	b.  He departed from advanced individual training on permanent change of station 
(PCS) leave on 1 August 1997.  On 20 August 1997, he failed to arrive his new duty 
station of Korea.

	c.  On 20 August 1997, the applicant was reported as absent without leave (AWOL) 
and coded as Assigned Not Joined (ASNJ) to his gaining organization.

	d.  On 30 December 1998, he surrendered to military authorities at Fort Knox, KY.  
He was assigned to the Special Processing Company, U.S. Army Personnel Control 
Facility at Fort Knox, KY.

	f.  His DD Form 458 (Charge Sheet) states court-martial charges were preferred for 
one specification of AWOL from 20 August 1997 to 30 December 1998.

	g.  On 5 January 1999, he consulted with legal counsel and subsequently requested 
discharge under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations - Enlisted Personnel Separations), chapter 10.  In his request, he 
acknowledged:

*	maximum punishment
*	he was guilty of the charge against him or of a lesser included offense
*	he understood if his discharge was accepted she could be separated with an 
under other than honorable conditions discharge and furnished an Other 
Than Honorable Discharge Certificate
*	he would be deprived of many or all Army benefits and that he may be 
ineligible for benefits by the Veterans Administration and benefits of a Veteran 
under Federal and State law
*	he was advised he could submit any statements he desired in her own behalf
*	his election shows he elected not to submit a statement

	f.  On 20 August 1999, consistent with the chain of command recommendations, the 
separation authority approved the applicant’s request for discharge under the provisions 
of AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial.  
The separation authority directed issuance of an Under Other Than Honorable 
Discharge Certificate and reduction to the lowest enlisted grade.

	g.  On 14 April 2000, the applicant was discharged from active duty under the 
provisions of AR 635-200, chapter 10 as a private (PVT/E-1).  His DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 9 
months, and 23 days of active service with 494 days of lost time.  It also shows he was 
awarded or authorized:

*	Army Service Ribbon
*	Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
*	Sharpshooter Marksmanship Qualification Badge with Grenade Bar

4.  By regulation, a member who committed an offense or offenses the punishment for 
which includes a bad conduct discharge or dishonorable discharge may submit a 
request for discharge for the good of the service.  An Under Other Than Honorable 
Discharge Certificate normally is appropriate for a member who is discharged for the 
good of the service.

5.  By regulation (AR 15-185) applicants do not have a right to a formal hearing before 
the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice 
requires.

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:

The applicant's request for a personal appearance hearing was carefully considered.  In 
this case, the evidence of record was sufficient to render a fair and equitable decision.  
As a result, a personal appearance hearing is not necessary to serve the interest of 
equity and justice in this case.

After reviewing the application and all supporting documents, the Board found partial 
relief was 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.  The 
applicant was remorseful and demonstrates that he understands his actions were not 
that of all Soldiers.  The Board agreed the misconduct does not warrant an upgrade to 
an honorable discharge; however, an under honorable conditions characterization is 
appropriate based upon his successful service with the ARNG.




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 reissuing 
him a DD Form 214 for the period ending 14 April 2000 showing his characterization of 
service as under honorable conditions (General).

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 showing his characterization of service as honorable, 
and a personal appearance.
	  
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.  The honorable characterization is appropriate when the quality 
of the member’s service general 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 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 provides, in pertinent part, 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.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  
Applicants do not have a right to a hearing before the ABCMR.  The Director or the 
ABCMR may grant a formal hearing whenever justice requires.  Additionally, applicants 
may be represented by counsel at their own expense. 

4.  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.

ABCMR Record of Proceedings (cont)	 AR20170001540

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