ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 20109 DOCKET NUMBER: AR20170008925 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) * Self-Authored Statement * DA Form 2-1(Personnel Qualification Record), Section III and Section VII * Letter of Appreciation * Health Record Highlighted 11 October 1978 * Personnel control Facility Interview Sheet 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 received his military records from the National Records Center in March 2017 and there is no mention of his parachute accident or a request made by him for a discharge because his brother was in a serious motorcycle accident and he was needed at home. He describes the events surrounding his departure (detailed letter enclosed in packet). 3. The applicant provides: a. DA Form 2-1, which shows his service, training and other dates, a letter of appreciation, dated 19 July 1979 thanking the applicant for his excellent performance of duty with Company C. In addition to his outstanding spirit of cooperation displayed, and efficiency of services rendered are indicative of his high standards of morale, discipline, and devotion to duty. b. Chronological Record of Medical Care (see attachment). a. c. FDCF Form 691A (Personnel Control Facility Interview Sheet), which asks the question why he went Absent Without Leave AWOL and what actions did he take before leaving (please see attachment). 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 27 September 1977. b. DD Form 458 (Charge Sheet), dated 20 March 1990, court-martial charges were preferred against him for one specification of being Absent Without Leave (AWOL) on or about 10 September 1979 to on or about 5 December 1983. c. On 7 December 1983, he consulted with legal counsel who advised him on the basis for his contemplated trial by court-martial and the maximum permissible punishments authorized under the Uniform Code of Military Justice, the significance of his suspended sentence to a bad conduct dishonorable or dishonorable discharge; of the possible effects of an under other than honorable discharge, if this request is approved, and the procedures and rights available to him. Following consultation, he requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * he was guilty of the charge against him or of a lesser included offense(s) therein contained which also authorize(s) the imposition of a bad conduct discharge or dishonorable discharge * he did not desire further rehabilitation or a desire to perform further military service * if his discharge was approved, he may be discharged with a bad conduct discharge or dishonorable discharge * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State law * he may encounter substantial prejudice in civilian life because of a under than honorable discharge d. Consistent with the chain of command recommendation, on 9 January 1984, the separation approval authority approved the applicant’s discharge request for the good of the service with a under other than honorable discharge and reduced to the lowest enlisted grade of E-1. e. On 1 February 1984, he was discharged from active duty under the provision of AR 635-200, chapter 10. He completed 2 years, 1 month and 10 days of active service during this period of service. He has lost time from 10 September 1979 to 4 December 1983. He was awarded or authorized the Army Service Ribbon, Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Qualification Badge with Hand Grenade Bar, Parachute Badge and Aircraft Crewmember Badge. f. On 6 March 1992, the Army Discharge Review Board denied his request for a change in the character and/or reason of his discharge. 5. By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the length of the AWOL offense which resulted in the applicant’s separation, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the event leading to discharge, the Board concluded there was insufficient evidence to show an error or injustice was present which warranted a correction to the characterization of service. 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. 6/17/2019 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 635-200 (Personnel Separations – Enlisted Personnel), 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. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. 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 1. 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.