ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  15 October 2019

	DOCKET NUMBER:  AR20170012046


APPLICANT REQUESTS:  an upgrade of his other than honorable conditions discharge 
to an honorable and a personal appearance before the Board 

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 his type of discharge is an error and former Secretary of 
Defense X___ X___ had his case file. 

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

	a.  He enlisted in the Regular Army on 4 August 1978.

	b.  He received nonjudical punishment for:

*	absent without leave (AWOL) from 11 October 1978 to 1 November 1978
*	willfully disobeyed an order from his superior noncommissioned officer

	c.  Court-Martial charges were preferred on 8 February 1985.  His DD Form 458 
(Charge Sheet) indicates he was charged with:

*	Specification 1:  AWOL from 4 January 1979 to 27 May 1979
*	Specification 2:  AWOL from 11 June 1979 to 6 February 1985

	d.  On 8 February 1985, he consulted with legal counsel and subsequently 
requested discharge under the provision of Army Regulation (AR), 635-200, (Personnel 
Separations - Enlisted Personnel), chapter 10, in his request, he elected not to submit a 
statement on his own behalf and he acknowledged:

*	maximum punishment 
*	he was guilty of the charge against him of a lesser included offense 
*	he did not desire further rehabilitation or a desire to perform further military 
service 
*	he understood if his discharge was accepted he could be separated with an 
under other than honorable conditions discharge and furnished an Under 
Other Than Honorable Discharge Certificate 
*	if an under other than honorable conditions discharge was issued, he would 
be deprived of many or all Army benefits and that he may be ineligible for 
benefits by the Veterans Administration and benefits of a Veteran under 
Federal and State law

	e. On 26 March 1985, 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 pay grade.

	f.  On 11 April 1985 he was discharged from active duty under the provisions of AR 
635-200, chapter 10, and issued an under other than honorable conditions discharge.  . 
His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he 
completed 8 months, and 10 days of active service with 2066 days of time lost from 
11 June 1979 to 5 February 1985 and 4 January 1979 to 6 May 1979. It show no 
awards or decorations. 

4.  There is no evidence the applicant has applied to the Army Discharge Review Board 
for review of his discharge within that board's 15-year statute of limitations.

5.  By regulation, AR 635-200, 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.  An under other than 
honorable discharge is normally appropriate for a member who is discharged for the 
good of the service.

6.  Soldiers separated under AR 635-200, paragraph 10, in lieu of trial by court martial 
are assigned the Separation Code JFS in accordance with AR 635-5-1 (Personnel 
Separations – Separation Program Designators).

7.  By regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings 
may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  

8.  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 short term of honorable service completed prior to multiple 
lengthy periods of AWOL, 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.


	  
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 1-9d (Honorable discharge) states an honorable discharge is a 
separation with honor.  Issuance of an honorable discharge will be conditioned upon 
proper military 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 of service, grade, and general aptitude.  Where there have been infractions of 
discipline, the extent thereof should be considered, as well as the seriousness of the 
offense(s). 

	b.  Paragraph 1-9e (General discharge) states a general discharge is a separation 
from the Army under honorable conditions of an individual whose military record is not 
sufficiently meritorious to warrant an honorable discharge.  When a member’s service is 
characterized as general, except when discharged because of misconduct, unfitness, 
unsuitability, homosexuality, or security, the specific basis for such separation will be 
included in the individual’s military personnel record.  Army Regulation (AR) 635-200 
(Personnel Separations – Enlisted Personnel) sets forth the basic authority for the 
separation of enlisted personnel.

	c.  Chapter 10 of the regulation provides that 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.  The 
discharge request maybe submitted after the court-martial charges are preferred 
against the Soldier or where required, after referral, until final action by the court-martial 
convening authority.  A discharge under other than honorable conditions normally is 
appropriate for a Soldier who is discharged for the good of the service.  However, the 
separation authority may direct a general discharge if such is merited by the Soldier’s 
overall record during the current enlistment.

3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins 
its consideration of each case with the presumption of administrative regularity, which is 
that what the Army did was correct.  

   a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.  

   b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence 
or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right 
to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal 
hearing whenever justice requires.

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 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170012046

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