ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20170008721 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal From the Armed Forces of the United States) * Applicant Self-Authored Statement * National Personnel Records Center (NPRC) Letter, dated 11 May 2017 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 was immature during his short time periods when he served in the United States Army Reserve (USAR) and the Regular Army (RA). He was bombarded with severe outside issues that interfered with him serving. He had learned that his first child was born with cerebral palsy. His children were taken from their mother three times by child protection services. He was dealing with his grandfather's death. He has completed all the important achievements he has set out to do, finish high school, technical school, and college. Getting his discharge upgraded will be the last and most important of all he has set out to do. 3. The applicant provided a letter from NPRC. They forwarded his completed DD Form 293 and his request for review and approval of amendments or corrections to his military records to the Army Review Boards Agency. 4. A review of the applicant’s service records shows the following: a. On 16 November 1979, he enlisted in the USAR. He entered active duty for training on 6 December 1979. a. b. TRADOC TDP Forms 871-R (TDP Counseling) reflect he was counseled several times for problems such as, being absent without leave (AWOL) during the period of 28 January 1980 through 20 February 1980. His chain of command counseled him several times since his entry into the unit about his appearance, performance, and his attitude and how it deteriorated to substandard levels. c. On 28 February 1980, the applicant's commander counseled him in reference to his negative attitude and inability to adjust to the military due to his personal problems. He was AWOL from 7 February 1980 to 15 February 1980. d. On 28 February 1980, his unit commander proposed discharge under the provisions of paragraph 5-33, Army Regulation (AR) 635-200 (Personnel Separations) Trainee Discharge Program (TDP) for a very negative attitude and his inability to adjust. The intermediate commander recommended approval of the separation action. e. On 13 March 1980, the separation authority approved the applicant's discharge and directed that he receive an honorable discharge. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 18 March 1980. He completed 3 months and 5 days of active service and 1 month of inactive service. The separation code JET, reenlistment code 3b, 3 (not eligible for reenlistment unless waiver is granted), and reason for separation TDP marginal or nonproductive. f. On 31 July 1980, he enlisted in the USAR under the Delayed Entry Program (DEP). He was discharged from the DEP and enlisted in the RA for a period of 3 years on 18 September 1980. g. On 10 December 1980, he was reported AWOL and on 4 March 1981, he surrendered to military authorities. h. On 7 May 1982, he was counseled and acknowledged that he waived his right to undergo a medical examination. i. On 10 May 1982, court-martial charges were preferred against him for one specification of AWOL from 1 April 1981 to 1 May 1982. j. On 10 May 1982, the applicant consulted with legal counsel. Counsel advised him of the basis for the contemplated trial by court-martial for an offense punishable under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court- martial was approved, and of the procedures and rights available to him. Following consultation with legal counsel, the applicant requested discharge under the provisions a. of AR 635-200, 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 dishonorable discharge * 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 stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service * he elected not to submit a statement on his own behalf k. On 21 May 1982, the separation authority approved the applicant’s discharge under the provisions of Chapter 10, AR 635-200 for the good of the service. He will be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Discharge Certificate. l. On 14 June 1982, he was discharged. His DD Form 214 shows he was discharged under the provisions of Chapter 10, AR 635-200 in lieu of a court-martial, under other than honorable conditions. He completed 5 months, and 4 days of active service with lost time from 6 February 1980 to 14 February 1980 and 11 December 1980 to 30 April 1982. 5. By regulation, chapter 10 of AR 635-200 provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 6. 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. 1. 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. Although the applicant provided some mitigating factors for the misconduct, the Board found, based upon the short term of service completed prior to the misconduct beginning, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to discharge, 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. 5/21/2019 X CHAIRPERSON Signed by: 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) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable discharge) states that 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 with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General discharge) states that 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. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, 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. However, the discharge authority may direct an honorable or general discharge if such are merited by the member’s overall record during the current enlistment. 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, 1. 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.