ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20170003332


APPLICANT REQUESTS:  An upgrade of his Under Other Than Honorable Conditions Discharge to Honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
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 he wants his Under Other Than Honorable Conditions Discharge to be upgraded to Honorable.

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

	a.  He enlisted into the Regular Army on 31 July 1990.

	b.  On 29 May 1992, he received a DA Form 4126-R (Bar to Reenlistment Certificate) for the following record of non-judicial punishment under article 15:

* 29 April 1992, wrongful use of marijuana between 8 February 1992 and 9 March 1992
* Absent without leave (AWOL) on 31 March 1992
* 15 May 1992, vacation of suspension of article 15, reduction to private/E-1

	c.  DD Form 458 (Charge Sheet) indicates court marital charges were preferred on 24 February 1993.  He was charged with one specification of AWOL for a period from 9 July 1992 until 4 February 1993.

	d.  He consulted with legal counsel on 24 February 1993 and subsequently requested discharge under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  He acknowledged:

* the maximum punishment if found guilty
* if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate
* if his discharge request is accepted, he would be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

	e.  On 11 March 1993, his immediate commander recommended approval.

	f.  Consistent with the chain of command's recommendation, the separation authority approved the applicant’s request for discharge on 22 March 1993, for the good of the service and ordered his service be characterized as under other than honorable conditions.  He would be reduced to the lowest enlisted pay grade.

	g.  On 12 April 1993, he was discharged UP of AR 635-200, Chapter 10 under conditions other than honorable in the rank of private/E-1.  He completed 2 years and 29 days of active service.  He was awarded the National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Sharpshooter Qualification Badge (M-16), and First Class Qualification Badge (Hand Grenade).  Lost time included: 31 March 1992 until 18 April 1992 and 9 July 1992 until 3 February 1993.

4.  By regulation, Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

5.  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 found the relief was not warranted.  Based upon the multiple drug offenses and the lengthy AWOL offense, as well as the lack of character evidence submitted by the applicant to show that he learned from the events leading to his discharge, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the characterization of service.

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.
	 
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) sets forth the basic authority for the separation of enlisted personnel.  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.

	a.  Paragraph 3-7a(1) states an honorable discharge is a separation with honor.  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.  Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted.

	b.  Paragraph 3-7b(1) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization.  It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

ABCMR Record of Proceedings (cont)	 AR20170003332


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