ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170009188

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 served from October 1986 to January 1990, where he received airborne status, ranger, and was part of the ranger battalion. He was reassigned to a different unit where he was not happy, so he traveled to Fort Campbell, KY processing center where he out processed, but was informed there that his record would be upgraded to honorable. He served 3 years honorably and he is seeking the change to make it possible to be eligible for healthcare purposes.

3. A review of the applicant service records shows the following:

   a. He enlisted in the Regular Army on 23 October 1986.

b. The DA Form 4187 (Personnel Action) shows:

* 1 June 1989, his duty status changed from present from duty to absent without leave (AWOL)
* 29 August 1989, his duty status changed from dropped from rolls (DFR) to attached/present for duty

   c. On 1 September 1989, court martial charges were preferred against the applicant for one specification of AWOL from 1 June 1989 to 28 August 1989.
   a. 

   d. On 28 August 1989, the applicant elected did not desire to undergo a medical examination for separation.

   e. d. He consulted with legal counsel on 1 September 1989 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. In his request, he acknowledged:

* the maximum punishment
* he was guilty of the charge against him or of a lesser included offense which authorized a punitive discharge
* he did not desire further rehabilitation or a desire to perform further military service
* if his discharge was approved, he may be discharged under conditions other than honorable and the effects of the 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 laws

   f. Consistent with the chain of command recommendations, on 6 December 1989, the separation authority approved the applicant’s request for discharge under the provisions AR 635-200, chapter 10, for the good of the service. He directed he be reduced to the lowest grade and issued an under other than honorable conditions discharge certificate.

   g. On 22 January 1990, he was discharged from active duty under the provisions of AR 635-200, chapter 10, for the good of the service an administrative discharge, conduct triable by court martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that his service is characterized as under other than honorable conditions.  He completed 3 years, and 3 days of active service.  He had lost time from 1 June 1989 to 27 August 1989.

4. By regulation discharges under the provisions of AR 635-200, chapter 10 are voluntary requests for discharge in lieu of trail by court-martial.

5. 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 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.

6. In reaching this determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance.
1. 

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 record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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.

6/25/2019






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):

A review of the applicant’s records shows his DD Form 214 omitted administrative entries in the Remarks block. As a result, amend the DD Form 214 by adding in item 18 the entry “Continuous honorable service 19861023 to 19890530.”

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 – Enlisted Personnel) 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 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 (General Discharge) 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 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.

3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment).

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
1. 

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.

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