ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20170003764


APPLICANT REQUESTS:  

* an upgrade of his under other than honorable discharge
* a personal appearance before the Board

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 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 unit deployed to Kuwait with a Fort Bragg Team.  He and six others were singled out and sent back to the United States.  A first sergeant was harassing him and wanted to fight.  This was a racial harassment issue!  The master sergeant told him to stay gone for 90 days.  He stayed for 91 days and was shipped to Fort Knox.  Within 45 days he was discharged with an under other than honorable discharge that “would be upgraded in 6 months.”  He is no longer that same young immature individual.  He has a family, wife, ten kids, and 6 grandkids all living according to God’s will.

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

	a.  He enlisted in the Regular Army on 16 November 1988.

	b.  He was reported absent without leave (AWOL) on 9 August 1990, and was dropped from the rolls (DFR) on 6 November 1990, for desertion.  His duty status changed from DFR to returned to military control on 6 March 1991.

	c.  Court-martial charges were preferred on 20 March 1991, on the applicant.  His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being AWOL from 6 November 1990 to 6 March 1991.

	d.  After consulting with legal counsel, he admitted he was AWOL and requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel).  He acknowledged:

* maximum punishment
* he was guilty of the charge against him or of a lesser included offense and did not desire further rehabilitation or further military service
* if his request for discharge was accepted, he may be discharged under conditions which are other than honorable and furnished an Other Than Honorable Discharge Certificate
* he may be ineligible for many or all benefits administered by the Veterans Administration and 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 the other than honorable discharge
* he elected to submit a statement on his own behalf

	e.  In his statement, the applicant stated:  

		(1)  He did not think he should be chaptered out of the Army.  He kept a good record with the exception of an Article 15 that he received for missing a call out which half the battalion missed too which was foolish but he went right back when he found out his company was called to combat.  When he went back the next day he was told by an officer and a staff sergeant who told him his company did not want him.  They said they were going to put him out of the Army, he was given his keys and told to go to another post and sign in because they didn’t have time for him at Fort Bragg.  His leadership was responsible for him leaving the second time; he didn’t go AWOL he was only following a command from his leadership so he does not think it should be held against him.

		(2)  He was a good Soldier and had never shown disrespect to any of the personnel who were appointed over him and he never gave them any problems.  He should not have been discharged from the Army but instead retained to serve his country for the term that he enlisted and given the opportunity to make the decision at the end of that term whether or not to re-enlist or to get out with an honorable discharge.  He only had one request and only one reason for fighting so hard to stay in, he was proud himself and what the Army had done for him and he wished to have one more chance to serve his country and give back a little of what was given to him.  He had seen personnel who had done worse and still were able to stay and finish out their enlistment.  He wanted the chance to go back to Saudi Arabia and be a Soldier to honor his country.  He wished they would have reconsidered the discharge action it was not just a job for him it was a career and was to be his dream and his life

	f.  On 27 March 1991, the chain of command forwarded the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service, and directed that he be discharged under other than honorable conditions.

	g.  On 2 April 1991, consistent with the chain of command’s recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200 for the good of the service.  The applicant was reduced to the grade of E-1.  He was issued an under other than honorable conditions discharge.

	h.  On 23 April 1991, he was discharged from active duty.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 10, AR 635-200, under other than honorable conditions.  He completed 1 year, 11 months, and 15 days of active service with lost time from 9 August 1990 to 1 October 1990 and 6 November 1990 to 5 March 1991.  He was awarded or authorized:

* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar
* Parachutist Qualification Badge

5.  By regulation, applicants do not have a right to a hearing before the ABCMR.  
The Director or the ABCMR may grant a formal hearing whenever justice requires.

6.  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 in lieu of trial by court-martial.  The Soldier’s written request will include an acknowledgement that he/she understands the elements of the offenses/s charged and is guilty of the charge/s or of a lesser included offense/s.  A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.

7.  In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1.  After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

2.  The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.
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.


ADMINISTRATIVE NOTE(S):  Not Applicable


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) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

3.  Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations) in effect at the time, set forth the basic authority for the separation of enlisted personnel. 

	a.  Paragraph 3-7a (Honorable Discharge)  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.  

	b.  Paragraph 3-7b (General Discharge)  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.  Chapter 10 of that regulation states 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.  A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service.

4.  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)	 AR20170003764


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