ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2019 DOCKET NUMBER: AR20170017180 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to an honorable discharge. 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 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 the characterization of his discharge is unjust and too harsh and that his post-service achievements warrant consideration for an upgrade. He was a young man trying to become a man, raised by a single mom when his mother’s health and welfare declined he did all he could to help her. He did not understand military law and he should have dealt with his personal life. This type of discharge has affected him all of his life, he continues to face diminished job prospects and therefore request an upgrade. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 6 January 1992. He served in Hawaii from 29 April 1992 to on or about 3 January 1996. He was promoted to specialist/E-4 on 1 April 1993 and he reenlisted on 6 October 1995. b. He accepted nonjudicial punishment on 22 August 1996 for disobeying general order number one and violating a policy letter. c. On 8 November 1996, the applicant was reported absent without leave (AWOL), and on 8 December 1996, he was dropped for rolls (DFR). He ultimately returned to military control on 14 April 1997. a. d. On 18 April 1997, court martial charges were preferred against the applicant for one specification of AWOL from on or about 8 November 1996 to on or about 14 April 1997. e. On 18 April 1997, he consulted with legal counsel and subsequently requested discharge under the provision of AR 635-200, chapter 10. In his request, he acknowledged: * he was making this request of his own free will and had not been subject to any coercion whatsoever by any person * by submitting this request for discharge, he understood the elements of the offense charged and he is guilty of the charge against him * he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service * as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law * he understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge f. On 27 June 1997, consistent with the chain of command's recommendations, the separation authority approved the applicant’s request for discharge. He would be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate. g. On 5 August 1997, he was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provision of AR 635-200, chapter 10 (in lieu of trial by court-martial) with an under other than honorable conditions characterization of service. His DD Form 214 also shows: * he completed 5 years, 1month and 23 days of active service with lost time from 8 November 1996 to 13 April 1997 * he had continuous honorable active service 19920106 to 19951004 * he was awarded or authorized Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Hand Grenade Sharpshooter Qualification Badge, and M16 Rifle Marksman Qualification Badge 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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 1. 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. 5. In reaching this determination, the Board can consider the applicant’s petition and 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 not warranted. Based upon the lengthy AWOL offenses which led to the discharge and an insufficient amount of character evidence submitted by the applicant, in the Board’s opinion, to show that he has learned and grown from the misconduct which led to his discharge, the Board concluded that the characterization of service received at the time of discharge 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. 5/28/2019 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, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) 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) 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. c. Chapter 10 of that regulation states a Soldier 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. 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, 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 1. might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.