ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF:
BOARD DATE:  2 July 2019
DOCKET NUMBER: AR20170015704


APPLICANT REQUESTS: upgrade of under other than honorable conditions discharge to general under honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

   * DD Form 293 (Application for the Review of Discharge)
   * 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 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 there was no error. He did get into trouble and had a drinking problem. He is sorry for his drinking and ashamed of his driving while intoxicated. He was a good Soldier. He has been sober for 3 years. And has really started his life again after a long hard road and is trying to do the right thing.  He needs a general discharge to be able to do that.  It has been a long time since his discharge and is requesting his discharge to be upgraded to a general under honorable conditions.

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

   a. He enlisted in the Regular Army on 15 September 1993.

b. The DD Form 458 (Charge Sheet) is not available for review with this case.

   c. On 12 December 1994, he consulted with counsel and was advised of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice; of the possible effects of discharge Under Other Than Honorable Conditions, if this request is approved; and of the procedures and rights available to him.  After consulting with counsel, he requested
   a. 

discharge in lieu of trial by court-martial, in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

d. In his voluntary request, the applicant acknowledged:

* he was guilty of the charge(s) against him or lesser related offense(s)
* he had no desire for further rehabilitation or further military service
* he had been afforded the opportunity to consult with legal counsel
* he understood that the charge(s) against him could be subject to a bad conduct or dishonorable discharge
* he understood that if his discharge request was approved he could be furnished an under other than honorable conditions discharge certificate
* he may be deprived of many or all Army benefits and may be ineligible for many or all benefits administered by the Veterans Administration
* he may be deprived of many or all benefits under both Federal and State law
* he may encounter substantial prejudice
* he understood that upgrade of his discharge was not automatic that he may apply for the request to the Army Discharge Review Board or the Army Board for Correction of Military Records
* he understood that consideration by either board does not imply that his discharge will be upgraded
* he may submit statements on his own behalf

   e. Consistent with the chain of command recommendations, on 16 December 1994 the convening authority approved the applicant’s request for discharge in lieu of trial by court-martial with an under other than honorable conditions discharge and reduction to the lowest enlisted grade of E-1.

f. He was reduced to PVT/E-1 effective 16 December 1994.

   g. He was discharged from active duty on 22 December 1994 with under other than honorable conditions characterization of service under the provisions of chapter 10, AR 635-200 with the rank of PVT/E-1. His DD Form 214 (certificate of Release or Discharge from Active Duty) showed that he completed 1 years, 3 months, and 8 days of active service. It also shows that he was awarded or authorized the Army Service Ribbon and National Defense Service Medal.

4. By regulation 635-200, a Soldier who has committed an offense or offenses, the punishment for which a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The provisions do not apply to requests for discharge per this chapter unless the case has been referred to a court-martial authorized to adjudge a punitive discharge. 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.
1. 

5. In reaching is 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense guidance for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He was remorseful; however, he did not provide character witness statements or evidence of post-service achievements for the Board to consider for a clemency determination. Based upon the available evidence and considering the short term of honorable service completed prior to the misconduct which led to the applicant’s separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct; there is insufficient evidence to determine error or injustice.

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.
7/17/2019

 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets for 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 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.

   b. Paragraph 3-7b (General Discharge) states 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.

   c. Chapter 10 (For the Good of the Service) states a Soldier who has committed an offense or offenses, the punishment for which a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The provisions do not apply to requests for discharge per this chapter unless the case has been referred to a court-martial authorized to adjudge a punitive discharge. 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. A discharge under other than honorable conditions normally is appropriate for a Soldier 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,
1. 

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.

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