ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 October 2019 DOCKET NUMBER: AR20170003421 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 (ABCMR) 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 was a proud Soldier and loved his country. He had a young girlfriend who he pledged to marry and travel together while making a career out of the Army. It was unfortunate that she did not love him as much. He was ordered back to the barracks one night to escape flooding and he found his girlfriend in bed with his friend. He left, started driving and never returned out of humiliation. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 21 August 1980. b. Court-martial charges were preferred on 8 April 1983. His DD Form 458 (Charge Sheet) indicates he was charged with two specifications of being absent without leave from on or about 18 October 1982 and did remain so absent until on or about 15 February 1983 and from on or about 17 February 1983 and did remain so absent until on or about 26 March 1983. c. He consulted with legal counsel on 8 April 1983 and subsequently requested discharge for the good of the service 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 the charges against him or of a lesser included offense * he did not desire further rehabilitation or further military service * if his request for discharge was accepted, he may be discharged under other than honorable conditions * as a result of the issuance of an under other than honorable conditions discharge, he would be deprived of many or all Army benefits * he may 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 * he may expect to encounter substantial prejudice in civilian life * he elected not to submit a statement in his own behalf d. On 20 May 1983, the separation authority approved the applicant’s request for discharge for the good of the service. He directed he be discharged with an under other than honorable discharge certificate and reduced to the lowest enlisted pay grade. e. On 2 June 1983, he was discharged from active duty under the provisions of AR 635-200, chapter 10 with an under other than honorable conditions discharge characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 4 months and 5 days with lost times from 18 October 1882 to 14 February 1983 and 17 February 1983 to 25 March 1983. It also shows he was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar, Hand Grenade (1st Class) Badge and the Army Service Ribbon. 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation, a member 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. An Under Other Than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service. 6. The Board should 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, the Board found relief was not warranted. The applicant voluntarily and in writing requested to be discharged. All requirements of law and regulation were followed and his rights were fully protected. Based upon the relatively short term of service completed prior multiple lengthy AWOL offenses, the Board concluded that there is insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of serivce. 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 (AR) 635-200 (Personnel Separations- Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor. 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, grade, and general aptitude. b. Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation states a member 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. An Under Other Than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service. 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. Nothing Follows ABCMR Record of Proceedings (cont) AR20170003421 5 1