ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:  

	BOARD DATE:  15 August 2019

	DOCKET NUMBER:  AR20170013963


APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable

SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  

* DD Form 149 (Application for Correction of Military Record)
* self-authored statement

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 would like his discharge to change to an honorable to allow him to use veterans’ services.  Based on merit and record, as well as clarity and time to fully understand the injustice. 

3.  The applicant provides a self-authored statement stating: 

a.  He would like his discharge to be changed to honorable to allow for veterans
services.  When he took the ASVAB in high school he scored very high and could have chosen any military occupational specialty.  He chose Airborne Infantry and was promoted during basic training.  When he was stationed at the 82nd Airborne Division at Fort Bragg, he completed various military schools.  During Ranger school he was injured and was dropped from the rolls.

b.  He enjoyed the military and looked forward to going back to ranger school and 
advancing his career.  In the fall of 1998, he had a new platoon sergeant who was a soured person and just wanted to retire.  They did not see eye to eye and the platoon sergeant was a very negative person.  He shared with his platoon sergeant about his excitement of expecting his son; however, the response he received was very negative.

c.  He decided not to reenlist and to move to California near family.  He was granted 
permissive TDY for the move and he made the decision to sign out a couple of hours prior to the beginning of his leave.  He admits what he did was wrong, but he ask that his dedicated service be considered for a small misjudgment in trying to save time.

	d.  He was told by a friend that his platoon sergeant had torn up his leave form and 
listed him as AWOL.  He called the military police on base and was told he had already 
started his expired term of service from the military prior to his leave date.  He continued
to call to resolve the issue.  He volunteered to go back to Fort Bragg, NC to resolve the 
issues.  He believes this was the cause of his poor relationship with his platoon 
sergeant.

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

	a.  He enlisted in the USAR on 1 March 1996.

	b.  On 13 May 1998, a letter of reprimand was placed in the applicant’s record for drunk driving in Spring Lake, North Carolina on 1 May 1998.  A breath analysis test was administered at the time of arrest and established his blood alcohol content to be .11%. 

	c.  DD Form 458 (Charge Sheet) shows special court-martial charges were preferred against him for without authority he absent himself on or about 2 February 1999.  According to DD Form 616 (Report of Return of Absentee), he was returned to military control on 5 May 2002.  The date the charges were imposed is unclear.

	d.  The applicant’s service record is void of the complete facts and circumstances surrounding his discharge.  However, his DD 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 11 June 2002 and issued an Under Other Than Honorable Conditions Discharge in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10.  He completed       2 years, 11 months and 4 days of net active service.  He was awarded or authorized the Army Service Ribbon, Marksmanship Qualification Badge with Rifle Bar and Parachutist Badge.  He has lost time from 10 March 1999 to 7 May 2002.

	e.  The Army Discharge Review Board (ADRB), by letter, on 12 November 2002, to the applicant in response to his request for correction of his military record.  The ADRB stated that after careful review of his application, military records and all other available evidence, it was determined that he was properly and equitably discharged and denied his request to change his character and/or reason of his discharge.  

5.  By regulation, discharges under the provision of AR 635-200, Chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court-martial.  An under other than honorable conditions discharge is appropriate for this type of discharge.

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 reviewing the application and all supporting documents, to include to the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the pattern of misconduct, which included a lengthy AWOL offense, the Board concluded that the characterization of service received at the time of separation was appropriate.

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, U.S. Code, 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 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 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the regulation in effect at the time (and the version currently in effect) provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a of the regulation currently in effect provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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.

	c.  Paragraph 3-7b of the regulation currently in effect provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

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)	 AR20170013963


4


1