ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


                   IN THE CASE OF:

	BOARD DATE:  18 April 2019

	DOCKET NUMBER:  AR20170003287


APPLICANT REQUESTS:  The applicant requests upgrade of his under other than honorable conditions discharge (UOTHC) to a general discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Applicant Statement
* Letters of Support

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 at the time of his discharge, he was young and having marital problems.  He was stationed at Fort Riley for 22 months and after three months of recruiting in his hometown, he was on assignment Germany.

     a.  With only 24 months left in the military, his wife and children would not be authorized to join him.  He came home on leave before going to Germany; his wife who he had only seen him for a total of four months since he joined the Army threatened to divorce him if he went to Germany without her.  Knowing how much he enjoyed being in the service and being a good Soldier, he made a dumb decision and chose his wife and family over the service.  He has regretted the decision for 36 years and can’t change or defend his actions; his wife eventually divorced him.

     b.  Presently, he and his current wife own one of the largest poultry growing facilities for Foster Farms in Washington State.  He is active in his community; loves his country, the serviceman, the women, and veterans deeply.  He would still lay down his life in defense of his country.  He knows what he did was wrong and sincerely and deeply apologizes for taking his commitment of service to his country lightly.  He feels that he’s lived with the shame of an, other than honorable discharge for 36 years and respectfully ask for consideration his request be upgraded to a general discharge.

3.  On 1 February 1977, at the age of 19, the applicant enlisted in the Regular Army.

4.  On 24 April 1979, the applicant was reported absent without leave (AWOL) and was subsequently dropped from the rolls.  He later surrendered to military authorities at Fort Lewis on 13 March 1980.

5.  On 17 March 1980, court-martial charges were preferred.  He was charge for being AWOL from 24 April 1979 to 13 March 1980.

6.  On 21 March 1980, after seeking counsel’s advice, the applicant requested discharge for the good of the service in lieu of trial by court-martial; he acknowledged he understood the offense he was charged with.

7.  On 10 April 1980, the separation authority approved the applicant’s request for discharge and directed the applicant receive a discharge certificate for under other than honorable conditions.  

8.  On 1 May 1980, the applicant was discharged.  His DD Form 214 shows he completed 2 years, 4 months, and 8 days of net active service with 42 days lost time and no awards.  

9.  The applicant provides three letters of support from Mr. X, Ms. X, and Mr. X.  They all have known the applicant for many years since he’s been discharged from the military.  He gives back to his community and serves at his church.  They all noted how hard of a worker he is and is willing to help anyone in need.  They are all aware of what happened during his youth in the Army and support him in his quest to get his discharge upgraded.    

10.  Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial.  In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case.
 
11.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency.



BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing upgrade discharge requests, the Board determined that relief was warranted.  Based upon the enclosed statements from community leaders, the Board concluded that the applicant was demonstrated growth from the misconduct which resulted in discharge and demonstrating he has successful turned his life around.  For that reason, the Board recommended clemency and upgrading the discharge characterization to Under Honorable Conditions (General).

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 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states:   
     a.  A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service.  The request could be submitted at any time after the charges had been preferred.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate.
 
     b.  An honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel.  
 
     c.  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.
 
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.  
 
     a.  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.  
 
     b.  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)	 AR20170003287
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