ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  20 June 2019

	DOCKET NUMBER:  AR20170006651


APPLICANT REQUESTS:  an upgrade to 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 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 would like to request an upgrade to his discharge so he can get his full benefits.  He feels that his discharge was wrong and unjust because at the time he was having family problems and received advice from his squad leader that the easiest way to help his family was to go absent without leave (AWOL) for 30 days and that he would automatically be released from the military.

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

	a.  He enlisted in the Regular Army on 21 June 1989.

	b.  He reenlisted in the Regular Army on 25 November 1992 for 4 years as a specialist/E-4.

	c.  He served overseas in Saudi Arabia from 27 August 1990 until 24 March 1991 and Korea from 24 February 1992 until 27 February 1993.

	d.  On 8 June 1993 he departed his unit in an AWOL status and did not return to military control until 17 July 1993.  During that time he was dropped from rolls.

	e.  According to his DD Form 458 (Charge Sheet), dated 26 July 1993, court-martial charges were preferred against him for 1 specification of AWOL from 8 June 1993 until 17 July 1993.  

	f.  On 27 July 1993, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under UCMJ and the possible effects of a bad conduct or dishonorable discharge if the request is approved and of the procedures and rights available to him.

	g.  Following consultation with counsel, he 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, he indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

	h.  On 27 August 1993, his chain of command recommended he be discharged for the good of the service with an under other than honorable conditions discharge.  

	i.  Consistent with the chain of command's recommendation, on 9 September 1993, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and a reduction in rank to private/E-1.

	j.  His DD Form 214 shows he was discharged on 30 September 1993 for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions.  He completed 4 years and 2 months of active service,   with lost time from 8 June 1993 to 17 July 1993.  His record also shows he was awarded or authorized the:

* Army Service Ribbon
* National Defense Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Drivers Badge
* Overseas Service Ribbon (2)
* Non Commissioned Officer Professional Development Ribbon
* Kuwait Liberation Medal
* Southwest Asia Service Medal

4.  By regulation, a soldier who has committed an offense or offenses, the punishment for which, under the UCMJ and the manual court-martial (MCM), 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service

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 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 lengthy AWOL offense, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.
However, the Board noted that the applicant had a period of prior honorable service which was not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service.
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 21 June 1989 until 24 November 1992.”
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.
	 
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 - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  
	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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 provides that 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.
A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization. It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty.

	c.  Chapter 10 of that regulation provides, in pertinent part, that a soldier who has committed an offense or offenses, the punishment for which, under the UCMJ and the manual court-martial (MCM), 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The provisions of RCM 1003(d), MCM 1984, do not apply to requests for discharge per this chapter unless the case has been referred to a court-martial-authorized to adjudge a punitive discharge. The discharge request may be submitted after court-martial charges are preferred against the soldier, or, where required, after referral, until final action by the court-martial convening authority.

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)	 AR20170006651


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