ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 July 2019

	DOCKET NUMBER:  AR20170014347


APPLICANT REQUESTS:  his under other than honorable conditions discharge to be upgraded to an honorable.

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 (ABCMR) 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 discharged with 30 days left on his term.  He served 3 years and 11 months with no issues.  He had personal home problems.  He was told he could upgrade his discharge later.  He served all but 30 days honorably and did his war time service honorable.  

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

	a.  On 12 May 1989, he enlisted in the Regular Army.  

	b.  According to DA Form 2-1 (Personnel Qualification Record), he served in Saudi Arabia from 20 August 1990 to 9 April 1991.  

	b.  	On 5 August 1991, court-martial charges were preferred against him.  His DD Form 458 (Charge Sheet) indicates he was charged with one specification of absence without leave from 12 June 1991 to 23 July 1991.  

	c.  On 31 July 1991, after consulting with legal counsel, he subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  He acknowledged:

* he is guilty of the charge(s) against him or of (a) lesser included offense(s)
* maximum punishment
* he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions
* he would be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administrated by the Veterans Administration
* 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 by reason of the Other Than Honorable discharge
* there is not automatic upgrading or automatic review of my discharge by any Government agency or the ABCMR

	d.  On 12 August 1991, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation.  He would be discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions, and reduced to the lowest enlisted grade.

	e.  On 3 September 1991, he was discharged from active duty under the provisions of AR 635-200, chapter 10, and issued an under other than honorable conditions discharge.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that the completed 2 years, 1 month, and 25 days of active service with 40 days of lost time from 12 June 1991 to 22 July 1991.  It also shows that he was awarded or was authorized the:

* Army Service Ribbon
* National Defense Service Medal
* Southwest Asia Service Medal (2 bronze stars)
* Expert Marksmanship Qualification Badge with Rifle Bar
* Parachutist Badge

	f.  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.

4.  By regulation, 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.  An under other than honorable conditions characterization of service is appropriate. 

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 on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted.  Based upon the applicant completed two years of service prior to a one-time AWOL offense and it being the only evidence of misconduct in the record, 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

:	:	:	GRANT FULL RELIEF

X	X	X	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).
	 
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 by not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 (Discharge for the Good of the Service) a member 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.  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 the 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, 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 upgrade service characterization.  

ABCMR Record of Proceedings (cont)	 AR20170014347


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