ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 June 2019

	DOCKET NUMBER:  AR20170011291


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-Authored Statement

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 his days at Fort Bragg were not added to his record of service.  He was only 17 years old when he joined.  His brother was charged with murder while he was in boot camp at Fort Dix.  He went AWOL (absent without leave) to contribute support to his mother during this tragedy in his family.  His brother was convicted and put on death row in Florida.  He was only his half-brother, but still family.  After his release from the military and many years later, his brother’s conviction was overturned from a death sentence to life in prison.  He is still in prison to this day.  He did not realize until later in life the huge injustice the U.S. Army did to him when he returned after being AWOL.  He was giving service to his country when a tragedy occurred in his family which was beyond his control.  Although his actions were his and he made the wrong decision in going AWOL, for which he is truly sorry, he does not feel the punishment fits the offense.  He is 53 years old now and really needs your consideration in this matter.  

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

	a.  He enlisted on 22 July 1982 in the Regular Army.  Following completion of basic combat training, he was assigned to Fort Benjamin Harrison, IN for completion of advanced individual training. 

	b.  On 17 November 1982, court-martial charges were preferred against him.  His DD Form 458 (Charge Sheet) indicates he was charged with one specification of absence without leave from 5 October 1982 to 15 November 1982.  He held the rank/grade of private/E-1.

	c.  On 17 November 1982, he consulted with legal counsel.  He 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 is guilty of the charge against him or of a lesser included offense
* he did not desire further rehabilitation
* he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions
* he would be deprived of many or all Army benefits administrated by the Veterans Administration
* he may be deprived of his rights and benefits of a Veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge
* he elected to not submit a statement on his own behalf

	d.  On 2 February 1983, consistent with the chain of command recommendation, , the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted grade.  

	e.  On 24 February 1983, he was discharged from active duty under the provisions of AR 635-200, chapter 10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 months and 23 days of active service and lost time from 5 October to 14 November 1982.  It also shows he was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  

4.  By regulation, a member 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.

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 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.  Based upon the short term of service completed prior to a lengthy AWOL offense, the Board concluded that the characterization of service received at the time of separation 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.
	 
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 – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of accept 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) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory by not sufficiently meritorious to warrant an honorable discharge.  

	c.  Chapter 10 (Discharge for the Good of the Service) states a member 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.

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 the 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, 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 upgrade service characterization.  


ABCMR Record of Proceedings (cont)	 AR20170011291


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