ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20170003410 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general under honorable conditions. 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 his justification for the upgrade is medical treatment and general respect. His active duty time was short but good. He wanted to re-enlist but could not pass the hearing test. He was absent without leave (AWOL) twice due to his family situation at home. His mother needed help when the situation became unbearable dealing with the applicant’s younger brother. Approximately six months later, the brother fatally shot the mother. He is requesting the Board consider his reasoning. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 22 July 1980 for a period of four years. b. His DA Form 2-1 (Personnel Qualification record) shows: * 1 April 1981 – AWOL * 1 May 1981 – Dropped from rolls (Desertion) * 4 September 1981 – Returnee c. DA Form 458 (Charge Sheet), dated 30 September 1981 shows he was charged with two specifications of AWOL from 11 June 1981 to 4 September 1981 and 1 April 1981 to 8 June 1981. d. On 1 October 1981, the applicant consulted with legal counsel. Counsel advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights available to him. Following consultation with legal counsel, the applicant requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, the applicant indicated/acknowledged: * he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person * he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service * he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or a dishonorable discharge * he understood if his request for discharge was accepted, he could be discharged under other than honorable conditions * he understood if his discharge request was approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the VA * he could be deprived of his rights and benefits as a veteran under both Federal and State laws e. On 12 November 1981, the applicant's commander prepared DA Form 2496 (Disposition Form) to determine if the applicant whether or not should be discharged in lieu of a court-martial, and shows: * AWOL - 1 April 1981 – 8 June 1981 from Fort Lewis, Washington * AWOL - 11 June 1981 – 4 September 1981 from Fort Ord, California * AWOL because he disliked the military way of life, desires discharge because he feels he can do better as a civilian, and stated if returned to duty he would go AWOL again * his retention was not in the best interest of the Army, and should be administratively separated in lieu of court-martial * recommended approval issuance of a discharge certificate under other than honorable conditions f. Consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge under AR 635-200, chapter 10, for the good of the service in lieu of trial by a court-martial. He directed the applicant be reduced to the lowest enlisted grade (if applicable) and his service be characterized as under other than honorable conditions. g. The applicant was discharged on 14 December 1981. His DD Form 214 shows he was discharged under authority of AR 635-200, Chapter 10 for conduct triable by a court-martial with an under other than honorable conditions character of service. His DD Form 214 shows: * he completed 11 months, 20 days of active service during the period * he is authorized rifle (Marksman) badge * his separation code of JFS 6. By regulation AR 635-200, 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. 7. By regulation, AR 635-200, Soldiers are subject to separation under the provisions of chapter 10, for the commission of an offense or offenses, the punishment for any of which, under the UCMJ and Manual for Courts-Martial includes a bad conduct or dishonorable discharge. An under other than honorable conditions discharge was an appropriate and authorized characterization of service. 8. 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 determined that relief was not warranted. Based upon the short term of honorable service completed prior to the lengthy 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. 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. a. Paragraph 1-13a(1) provides that an honorable discharge is a separation with honor and issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service. b. Paragraph 1-13b provides that a general discharge is a separation from the Army under honorable conditions and is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The member may have had frequent non-judicial punishments but not for serious infractions. 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. 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) AR20170003410 4 1