ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  23 May 2019

	DOCKET NUMBER:  AR20170017270


APPLICANT REQUESTS:

* Upgrade of his under other than honorable conditions discharge to honorable
* His DD Form 214 (Certificate of Release or Discharge from Active Duty) with his signature on it in block 21

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Online Application)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 he witnessed physical abuse to a fellow Soldier during basic training.  He hit a drill instructor and was asked to leave.  When they said leave, he did and went back home.  When the drill instructor told him to leave, he thought he could actually leave the Fort Dix base in NJ.  The Army changed his duty status to absent without leave (AWOL) and arrested him.  He was told to be put back into basic training, however, a lieutenant told him he would only be able to after a sentence at the Fort Leavenworth, KS prison.  He elected to take the under other than honorable conditions discharge.  He was available to sign the DD Form 214 but is shows individual not available for signature.  He states he did sign his DD Form 214, see enclosed.  He left the Army in 1980 and put this part of his life aside and continued his civilian life as a trucker driver.

3.  The applicant provided his DD Form 214 (Certificate of Release or Discharge from Active Duty) Block 21 of his DD Form 214 does not reflect his signature.

4.  A review of the applicant’s service record shows:
	a.  He enlisted in the Regular Army on 31 July 1979.

	b.  DD Form 458 (Charge Sheet), dated 31 January 1980 indicates he was charged with being absent from his unit without authority on or about 2 September 1979 and remained absent until 29 January 1980.

	c.  He consulted with counsel and was advised 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 acknowledged:

* 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 accepted 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 elected not to submit a statement on his own behalf

	d.  On 1 February 1980, the applicant requested a delay in processing his court martial charges until the Commanding General, Fort Dix, NJ, acted on his application for a discharge under the provisions of chapter 10, AR 635-200.

	e.  On 28 February 1980, his immediate commander recommended his discharge with the issuance of an under other than honorable conditions discharge certificate.

	f.  On 29 February 1980, his intermediate commander recommended approval of the request for discharge with the issuance of an under other than honorable conditions discharge certificate.

	g.  On 18 March 1980, the separation authority approved the request for discharge with the issuance of an under other than honorable conditions discharge certificate.  

	h.  The applicant was discharged from active duty on 31 March 1980.  His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10, admin discharge conduct triable by court martial.  He completed 3 months and 3 days of active service.  Block 21 (Signature of Member Being Separated), shows the entry “Individual Not Available for Signature.” 
5.  By regulation, 

	a.  Army Regulation (AR) 635-200, chapter 10, states a member who has committed an offense 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.  Army Regulation (AR) 635-5 (Personnel Separations-Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  When the separatee cannot or will not sign, enter "Member not available to sign" or "Member refused to sign."  Signature of member must be legible on all copies.  A second signature may be needed on copy 4.  Use your payroll signature when signing the form.

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 not warranted.  Based upon the short term of service completed prior to an extended AWOL offense, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate.

Additionally, the Board found insufficient evidence as to how the applicant’s signature did not appear on his DD Form 214 was affecting the use of the form.  Therefore, the Board determined there was insufficient evidence of an error or injustice which would warrant granting a portion of the request relating to the signature of the applicant on his DD Form 214.


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 (AR) 635-5 (Personnel Separations) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  Table 2-1 (DD Form 214 Preparation Instructions), states when the separatee cannot or will not sign, enter "Member not available to sign" or "Member refused to sign."  Signature of member must be legible on all copies.  A second signature may be needed on copy 4.  Use your payroll signature when signing the form.

3.  AR 635-200 (Active Duty Enlisted Administrative Separations) in effect at the time, sets 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 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 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.  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)	 AR20170017270


4


1