ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 August 2019 DOCKET NUMBER: AR20170011836 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application For The Review of Discharge from The Armed Forces of the United States)) * DD Form 214 (Certificate of Release or Discharge From Active Duty) 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 is asking for an upgrade because he has credible service periods from 4 March 1988 to 18 November 1998, prior to receiving an under other than honorable discharge. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 4 March 1988. He was discharged on 3 December 1991 for immediate reenlistment. He reenlisted again on 4 December 1991 and 20 July 1995. b. His DD Form 4, Enlistment/Reenlistment Document for his original enlistment is not available for the Board’s review. c. He served two tours in Germany from 30 July 1988 to 16 July1990. He was mobilized in Saudi Arabia from 1 September 1996 to 6 January 1997. He also served in Korea from 1 February 1998 to 27 January 1999. d. Court-martial charges were preferred against him on 1 March 2001. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave (AWOL) from 30 January 2001 to 22 April 2001. e. Department of Defense Form 553, Deserter/Absentee Wanted by the Armed Forces, show the applicant listed and wanted by the Armed Forces for being AWOL, as of 30 January 2001. f. He was arrested on 22 April 2001 for, “Theft by Shoplifting,” by the Columbus Police Department. g. Department of the Army Form 616, Report of Return of Absentee, show the applicant’s return to military control as of 22 April 2001. h. He consulted with legal counsel on 13 November 2001 and subsequently requested discharge under the provisions of AR 635-200, Chapter 10 (Discharge for the Good of the Service). He acknowledged discharge in lieu of trial by Court Martial due to the charges preferred against him. He further acknowledged: * maximum punishment * he is guilty of the charge(s) against him or of lesser included offense(s) * he did not desire further rehabilitation or further military service * he understood that if his request for discharge was accepted he could be discharged under conditions other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge * he may be deprived of many or all Army benefits administrated by the Veteran Administration * he may be reduced to the lowest pay grade, Private / E-1 * 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 undesirable discharge * once his discharge is submitted, it may be withdrawn only from the consent of the commander exercising General Court-Martial Convening authority * he may submit statements on his own behalf which will accompany his request for discharge i. Consistent with the chain of command recommendation, on 12 December 2001, the separation authority approved the applicant’s request for discharge for the good of the service and directed he be discharged with an Under Other Than Honorable Conditions Discharge Certificate and reduced to the lowest enlisted grade. j. On 4 February 2002, he was discharged from active duty under the provision of AR 635-200, Chapter 10 for the good of the service – in lieu of trial by court-martial. His DD Form 214 shows he completed 13 years and 25 days of net active service with lost time from 24 October 2000 to 25 November 2000 and from 30 January 2001 to 29 October 2001. It also shows he was awarded or authorized the: * Joint Meritorious Unit Award * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Expert Marksmanship Qualification Badge with Pistol, Small More Bar * Marksman Marksmanship Qualification Badge with Rifle Bar * Marksman Marksmanship Qualification Badge with Grenade Bar * Parachutist Badge * Driver and Mechanic Badge with Mechanic Bar 4. On 27 December 2011, the Army Discharge Review Board reviewed the applicant's discharge processing, but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 5. By regulation, an individual whose conduct has rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate would normally be furnished individuals discharged for the good of the service. 6. The Board should 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, the Board determined relief is not warranted. 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 lengthy AWOL offense and the civilian offense which involved criminal activity and led to his apprehension and return to military control, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 4 March 1988 until 19 July 1995.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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. Issuance of an honorable discharge will be conditioned upon proper 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 or service, grade and general aptitude. b. Paragraph 3-7b. (General Discharge) is a separation from the Army under honorable conditions of an individual whose military records is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security. c. Chapter 10 of that regulation states an individual whose conduct has rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate would normally be furnished individuals 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011836 4 1