ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20170008109 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Three Letters of Support 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 that initially his contract said that he would go overseas to Europe, but then the Army gave him orders to Korea for a hardship duty. He did not go because he just had a son. He believes the Government voided the contract by giving him orders to Korea. He was a model Soldier up to that point and did everything that was asked of him by leaders. 3. The applicant provides: a. A letter from Mr. DM, who states that he has been an employer of the applicant and that the applicant is a good Christian and has always tried to help others less fortunate. Mr. DM vouches for the applicant as an individual and even worked in his home around his family with no problems. b. A letter from Mr. DO, who states that he has known the applicant for 6 years and has always been a good worker and successful in everything he was hired to do. He states that the applicant has not gotten into any legal trouble since he has known the applicant. c. A letter from Ms. DNL, who has known the applicant for 7 years and believes he is an honorable and gentle person. She hired him to do repairs in her home and states that she saw him in church several times and that he is a Christian and a person who holds high values. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 5 February 1980. b. He received nonjudicial punishment on/for: * 3 September 1980, for failing to go to his appointed place of duty * 21 October 1980, for failing to go to his appointed place of duty on two occasions c. Court-martial charges were preferred on 24 February 1982. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave from 19 December 1981 to 23 February 1982. d. He consulted with legal counsel on 23 February 1982, and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, (Discharge for the Good of the Service). He acknowledged: * maximum punishment * he was guilty of the charge(s) against him or of a lesser included offense * he does not desire further rehabilitation or desire further military service * if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate * he may ineligible for many or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge e. Consistent with the chain of command recommendations, on 10 March 1982, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200. He directed a discharge with an under other than honorable conditions characterization of service and reduction to private/E-1. f. On 16 April 1982, he was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years and 7 days of active service with lost time from 19 December 1981 to 22 February 1982. It also shows he was awarded or authorized: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar 5. By regulation, an individual 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. Also by regulation, applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 7. 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 it could reach a fair and equitable decision without a personal appearance of the applicant. One potential outcome discussed was to deny the requested relief based upon the length of his AWOL. However, based upon the liberal consideration guidance, letters of support, and the type of misconduct, the Board agreed to upgrade the characterization of service to Under Honorable Conditions (General). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X : :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). X CHAIRPERSON 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 (AR) (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation states an individual 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 Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 3. AR 15-185 (ABMCR) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABMCR will decide cases on the evidence of record. It is an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABMCR may grant a formal hearing whenever justice requires. 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 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.