ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  13 June 2019

	DOCKET NUMBER:  AR20170013125


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 was treated unfairly and wrongfully discharged.  While at home on emergency leave, he attempted to obtain ‘local duty status’ as a hometown recruiter until his father healed and went back to work.  He was receiving assistance from a Staff Sergeant (SSG), but feels that once they discovered his adopted father was a black man, he stopped receiving help.  He was told that his leave would be extended, however, the SSG never extended his leave and reported him as absent without leave.  He believes that he was lied to and mistreated by the SSG, who he claims to have used derogatory names in reference to his father.

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

	a.  He joined the Army National Guard on 8 November 1980 and he enlisted in the Regular Army (RA) on 11 February 1981.

	b.  Court-martial charges were preferred on 16 December 1982.  His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave from 15 November 1982 to 16 December 1982.

	c.  He consulted with legal counsel and on 17 December 1982, subsequently, he requested discharge under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, (Discharge For the Good of the Service), in effect at the time.  He acknowledged:

* he was guilty of the charges against him or of a lesser included offense which also authorizes the imposition of a bad conduct or dishonorable discharge
* he did not desire further rehabilitation or desire to perform further military service
* if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate
* he may ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a Veteran under both Federal and State laws
* he can expect to encounter substantial prejudice in civilian life because of the Other Than Honorable Discharge

	d.  Consistent with the chain of command’s recommendation, on 30 December 1982, the separation authority approved the applicant’s request and provided him with an Under Other Than Honorable Discharge Certificate under the provisions of chapter 10, AR 635-200, Chapter 10 (Discharge For the Good of the Service).

4.  The applicant applied to the Army Discharge Review Board for an upgrade of his discharge, which was denied by the board on 4 April 1984.

5.  By regulation, an individual who have committed an offense or offenses, UCMJ 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 is normally appropriate for a member who is discharged for the good of the service.

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 relatively short term of service completed prior to a lengthy AWOL offense, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the event leading to his separation, the Board concluded that there was a lack of evidence to show that there was an error or injustice which would warrant making a change 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.
	 
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, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states that 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 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) states that 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 but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 of this regulation provides procedures for separating soldiers who have committed an offense or offenses, UCMJ 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 is normally 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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.


ABCMR Record of Proceedings (cont)	 AR20170013125


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