ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20170013689


APPLICANT REQUESTS:  upgrade 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)
* 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 that he requests his discharge be upgraded to honorable so he can qualify for Veteran Administration benefits.

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

	a.  With prior service, he enlisted in the Regular Army on 1 May 1990.

	b.  He served in Germany from 16 May 1990 to 5 December 1990.

	c.  He served in Saudi Arabia from 6 December 1990 to 24 May 1991.
	
	d.  He again served in Germany from 25 May 1991 to 14 February 1992.

	e.  Order Number 170-124, dated 18 September 1992, shows the applicant was reduced in grade from specialist/E-4 to private/E-1 effective date 14 September 1992.

	f.  The complete facts and circumstances surrounding the applicant’s discharge are unavailable for the Board to review.  However, his record contains a DD Form 214, which outlines his reason for separation.
	g.  The applicant was discharged on 23 October 1992 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (For the Good of the Service – in Lieu of Court Martial).  His DD Form 214 shows he completed 2 years, 5 months, and 23 days of active service.  It shows he was awarded/authorized:

* Army Achievement Medal with 2 Oak Leaf Clusters
* National Defense Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Grenade Bar
* Southwest Asia Service Medal with 3 Bronze Service Stars
* Kuwait Liberation Medal

4.  By regulation, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), an individual 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 may be submitted after court-martial charges are preferred against the Soldier or where required after referral until final action by the court-martial convening authority.  An undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the service. 

5.  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.  

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.
	 
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, set forth the basic authority for the separation of enlisted personnel. 

   a.  Chapter 10, an individual 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 may be submitted after court-martial charges are preferred against the Soldier or where required after referral until final action by the court-martial convening authority.  An undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the service.  However, the separation authority may direct a general discharge certificate, if such is merited by the Soldier’s overall record during the current enlistment.

	b.  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.

	c.  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 records is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable condition may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

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 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.


ABCMR Record of Proceedings (cont)	 AR20170013689


4


1