ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  1 July 2019

	DOCKET NUMBER:  AR20170018091


APPLICANT REQUESTS:  an upgrade of his discharge from under other than honorable conditions

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Four Character Letters
* Criminal Records Search from North Carolina
* 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 believes there has been an injustice because he was young when he entered the military and he made mistakes because he was immature.  He was involved in numerous fights while serving on active duty and did not take time to realize how his actions at the time affected his future.  He also states that not serving his country honorably was the biggest mistake of his life and he terribly regrets his behavior. 

3.  The applicant provides:

   a.  Four letters of support which shows he is a man of integrity and is extremely dedicated to his family and others and is known for his work in the community.

b.  A criminal record search of himself from the state of North Carolina.

c.  His DD Form 214 (Certificate of Release or Discharge from Active Duty)


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

   a.  His record is void of his enlistment; however, his DA Form 2-1 (Personnel Qualification Record – Part II) and his DD Form 214 shows he enlisted in the Regular Army on 18 September 1979.

b. DD Form 458 (Charge Sheet), dated 5 January 1984, court-martial charges 
were preferred against him for one specification of being Absent Without Leave (AWOL) on or about 4 August 1980 to on or about 4 January 1984.

	c.  On 11 January 1984, he consulted with legal counsel who advised him on the basis for his contemplated trial by court-martial and the maximum permissible punishments authorized under the Uniform Code of Military Justice, the significance of his suspended sentence to a bad conduct dishonorable or dishonorable discharge; of the possible effects of an under other than honorable discharge, if this request is approved, and the procedures and rights available to him.  Following consultation, he requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request, he acknowledged:

* he was guilty of the charge against him or of a lesser included offense(s) therein contained which also authorize(s) the imposition of a bad conduct discharge or dishonorable discharge
* he did not desire further rehabilitation or a desire to perform further military service
* if his discharge was approved, he may be discharged with a bad conduct discharge or dishonorable discharge
* he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State law
* he may encounter substantial prejudice in civilian life because of a under than honorable discharge 

	d.  Consistent with the chain of command recommendation, on 31 May 1984, the separation approval authority approved the applicant’s discharge request for the good of the service in lieu of court-martial with a under other than honorable discharge and reduced to the lowest enlisted grade of E-1.

	e.  On 22 June 1984, he was discharged from active duty under the provision of 
AR 635-200, chapter 10.  He completed 1 year, 4 months and 1 day of active service during this period of service.  He was awarded or authorized the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Qualification Badge with Hand Grenade, Parachute Badge.  He has lost time from:

* 4 March 1980 to 5 March 1980
* 23 June 1980 to 24 June 1980
* 4 August 1980 to 17 September 1984

5.  By regulation, 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.

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 review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions and letters of support 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.  He did not provide evidence of post-service achievements for the Board to consider.  Based upon the length of the AWOL which included 41 consecutive months of AWOL, 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 was 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 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel.  
   a.  Paragraph 3-7a 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.

   b.  Paragraph 3-7b 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.  

   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.

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 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)	 AR20170018091


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