ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 July 2019

	DOCKET NUMBER:  AR20170017218


APPLICANT REQUESTS:  an upgrade to his under other than honorable conditions 
discharge, narrative reason for separation, and reentry code.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Legal Brief & Exhibits 
*	DD Form 214 (Certificate of Release or Discharge from Active Duty
*	DA Form 4187 (Personnel Action)
*	DD Form 616 (Report of Return of Absentee)
*	DD Form 458 (Charge Sheet)
*	DD From 553 (Deserter Form)
*	Transmittal of Charges Memorandum
*	Absent Without Leave (AWOL) Report Chapter 10/Chapter 14
*	Chapter 10 Discharge Packet

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.  On behalf of the applicant, his legal counsel has provided an in-depth brief, with 
exhibits, detailing the facts surrounding this case.

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

	a.  He enlisted in the Regular Army on 5 January 2005.

	b.  On 5 October 2006 court-martial charges were preferred against him for one 
specification being absent without leave (AWOL) from 27 August 2005 to 28 September 
2006.

	c.  On 5 Oct 2006, the applicant consulted with legal counsel who advised him of his 
rights.  Following consultation with legal counsel, he requested discharge under the 
provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  In his 
request for discharge, he indicated:

*	he was making this request of his own free will and he had not been 
subjected to any coercion whatsoever by any person
*	he understood that by requesting discharge he was admitting guilt to the 
charges against him or of a lesser-included offense that also authorized the 
imposition of a bad conduct discharge or a discharge under other honorable 
conditions
*	he acknowledged he understood if his discharge request was approved he 
could be deprived of many or all Army benefits, he could be ineligible for 
many or all benefits administered by the Veterans Administration
*	he acknowledged he understood he could be deprived of his rights and 
benefits as a veteran under both Federal and State laws
*	he stated that under no circumstances did he desire further rehabilitation and 
he had no desire to perform further military service
*	he elected not to submit a statement on his own behalf

	d.  Consistent with the chain of command recommendations and following a legal 
review for legal sufficiency, on 30 November 2006, 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.

	e.  On 10 January 2007, he was discharged from active duty under the provisions of 
AR 635-200, Chapter 10.  He completed 11 months and 4 days of active service.

	f.  By regulation (AR 635-200), 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.  A discharge under other than honorable 
conditions is normally considered appropriate.

	g.  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 review of the application and all evidence, the Board determined relief is not 
warranted.  The contentions by the applicant’s counsel were carefully considered.  The 
Board applied Department of Defense standards of liberal consideration to the complete 
evidentiary record and did not find any evidence of error, injustice, or inequity.  The 
applicant did not provide character witness statements or evidence of post-service 
achievements for the Board to consider.  Based upon the short term of honorable 
service completed prior to the lengthy AWOL offense which resulted in the applicant’s 
separation as well as the failure to accept responsibility and show remorse for the 
events leading to his separation, the Board agreed that the applicant's discharge 
characterization, reason for separation, and reentry code were warranted as a result of 
the misconduct.

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, 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 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.  

4.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170017218

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