ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20170013926 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * VA Form 21-4138 (Statement in Support of Claim) * Complaint for Divorce and Parentage dated 14 March 1992 * Paternity Evaluation Results dated 25 August 1992 * Decree of Divorce dated 25 September 1992 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 a young man in his 20’s and married early. He began having many family issues that caused him great stress. He found out his first born was not his child and was feeling disappointed and overwhelmed. He was also living with a grandparent that was very ill. He served three years without any issues; however, when he went on leave, he never returned. It has been many years and he would like the benefit of time served. He is older now and would like the record to reflect an appropriate discharge. The applicant turned himself in and is requesting the status of his discharge be overturned. 3. The applicant provides: a. Department of Veterans Affairs (VA) Form 21-4138, a statement in support of his claim detailing the events that led to his departure from the military. a. b. A Complaint for Divorce and Parentage, dated 14 March 1992, which states the applicant’s wife requested a divorce and a change in parental rights for a minor child born of the marriage, not his biological child. c. A copy of paternity evaluation results, dated 25 August 1992, which excludes the applicant as the father of the minor child. d. A Divorce Decree, dated 25 September 1992, terminating the marriage of the applicant. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 9 March 1984. b. He served in Belgium from 9 December 1985 to 20 July 1987. c. Court-martial charges were preferred on the applicant on 30 September 1987 for one specification of being absent without leave from 21 July 1987 to 25 September 1987. d. After consulting with legal counsel on 30 September 1987, he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel. He acknowledged: * maximum punishment * he is guilty of the charge against him or of a lesser included offense * 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 other than honorable conditions and furnished an Under Other than Honorable Discharge Certificate * he would be deprived of many or all Army benefits administrated by the VA * 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 e. Consistent with the chain of command recommendations, on 3 November 1987, 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. a. f. On 28 December 1987, he was discharged from active duty under the provisions of AR 635-200, chapter 10. He completed 3 years, 7 months, and 16 days of active service with 66 days lost time. It also shows he was awarded or authorized: * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Drivers Badge * Good Conduct Medal 4. By regulation, an individual who has committed an offense or offenses, the punishment for any of which includes a bad conduct discharge 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 for consideration of discharge upgrade requests, the Board determined that relief was warranted. The Board considered the applicant's statement regarding his personal circumstances, his record of service, the nature of his misconduct and his surrender to military authorities, the reason for his separation and whether to apply clemency. The Board found some in-service factors to serve as a basis for mitigating his misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence to include the applicant's prior ARNG service and his honorable service completed prior to a single AWOL offense, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 6/28/2019 X CHAIRPERSON Signed by 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), 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 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 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 states an individual who has committed an offense or offenses, the punishment for any of which includes a bad conduct discharge 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 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.