ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 September 2019 DOCKET NUMBER: AR20170014154 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States). 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: a. While he was on active duty in Germany he was experiencing problems at home and was granted leave, but he failed to report back to the military as scheduled and was reported as absent without leave (AWOL) for 33 days. He was under the impression he would be granted a “hardship” discharge; however; when he received his DD Form 214 (Certificate of Release or Discharge from Active Duty) the discharge was listed as under other than honorable conditions, in lieu of court martial. b. He believes it is an injustice because his total time in service was not examined and he had a total of 4 years, 9 months, and 26 days of service with 2 years, 9 months, and 16 days of foreign service. Had the full record been reviewed, he believes he should have been awarded a general, under honorable conditions discharge. He is completely different since he remarried seven years ago and has been gainfully employed for the past several years. He could not gather character statements because he never shared with anyone the discharge and they cannot attest to the change from his time in the military to the person he is today. 3. The applicant's military records are not available to the Board for review; however, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case. This case is being considered using reconstructed records, which primarily consist of a DD Form 214 and a few remaining documents located from his service record: a. He enlisted in the Regular Army on 17 April 1979. b. On 1 May 1984, he signed a statement acknowledging he had been counseled on the requirements for completion of a medical examination prior to separation. He elected not to undergo a medical examination. The statement further noted that the medical examination was a requirement for processing a Chapter 10 discharge. c. On 4 May 1984, after consulting with legal counsel he provided a statement admitting he was AWOL from 14 March 1983 to 18 March 1983 and again from 1 February 1984 to 24 April 1984. He also acknowledged: * he made the admission for administrative purposes to be out-processed from the Army * he understood that if the request for discharge was accepted he could be given an other than honorable discharge * military counsel explained to him the the legal and social ramifications of the type of discharge and what it will mean in the future * the agreement only pertains to his AWOL and charges could be preferred for any other military crimes d. On 8 June 1984, he was discharged from active duty under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 for the good of the service. He completed 4 years, 9 months, and 26 days of active service with 2 years, 9 months, and 16 days of foreign service, and 116 days of lost time. It also shows he was awarded or authorized: * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar * Army Service Ribbon * Good Conduct Ribbon * Driver and Mechanics Badge 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, 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. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the amount of honorable service completed prior to any misconduct in the record, as well as the type of misconduct leading to the applicant’s separation, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. Additionally, the Board did note that the applicant had a prior period of honorable service which was not currently reflected on his DD Form 214 and recommended that be corrected to more accurately reflect his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :ST :KM :CM GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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). 2. The Board also noted that the applicant had a previous period of honorable service which is not currently reflected on his DD Form 214. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 17 April 1979 until 12 November 1981.” 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 (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) AR20170014154 3 1