ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20170002784 APPLICANT REQUESTS: an upgrade of his under other than honorable discharge 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 is requesting mercy because he served and did his best at the time. While serving in Panama he associated with the wrong people. It has been almost 30 years. 3. A review of the applicant’s service records show the following: a. He enlisted in the Regular Army on 8 May 1987. b. He served in Panama from 1 February 1988 to 14 July 1988. c. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) was initiated on 8 March 1988 for adverse action. d. A DA Form 4187 (Personnel Action) was completed on 3 June 1988, changing his status from present for duty to absent without leave (AWOL). e. A FLAG was initiated on 3 June 1988 for adverse action. a. f. A DA Form 4187 was completed on 3 June 1988, changing his status from AWOL to military confinement. g. His record is void of a DD Form 458 (Charge Sheet). This form would have indicated the charge(s) and specification(s) which were preferred. h. On 27 June 1988, he consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * maximum punishment * he was guilty of a charge against him or of a lesser included offense * he did not desire further rehabilitation * he understood if his discharge was accepted, he may be discharged under conditions other than honorable and furnished an Other Than Honorable Discharge Certificate * he would be deprived of many or all Army benefits * he would be ineligible for many or all benefits administered by the Veterans Administration * he may be deprived of his rights and benefits as a Veteran under both Federal and State law i. Consistent with the chain of command recommendations, on 5 July 1988, the separation authority approved the applicant’s request for discharge and directed his character of service as under other than honorable conditions. j. On 21 July 1988, he was discharged from active duty under the provision of Army Regulation 635-200, chapter 10. He completed 11 months, 16 days of active service and loss of service from 3 June 1988 to 21 June 1988. His DD Form 214 shows he was awarded or authorized: * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar 4. By regulation, 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. 5. In reaching its determination, the Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 1. 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 a lack of mitigating factors and a short term of service, the Board found 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. 5/1/2019 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 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), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7 provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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 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. 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.