ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 May 2019 DOCKET NUMBER: AR20180000378 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) * 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 would like an upgrade of his under honorable conditions discharge to general under honorable conditions. During this period he lost his sister to a very tragic death and he was going through a rough time. He informed his unit that he was not in his right mind and he needed help but he received nothing but a chapter 13 and reduced in rank. He tried repeatedly to explain his problems and it was like he was just a messed up Soldier and the Army would be better off without him. Everything that he had accomplished meant nothing and he felt he was treated unfairly. All he needed was a little help. He felt like that part of his life was wasted and he should be justified by his whole military career was good until he went to Fort Bragg, NC. He was not there to sign his papers so he had to accept what was handed to him. He felt all those days they said he was not there were false because he was not there to defend himself. There was a time he was home for the weekend and he was snowed in. He called the officer on duty and was told to get back as soon as possible. Upon his return, he was issued an Article 15. He feels that his discharge should be changed because he thought the military took care of their people. He was treated so unfairly until this this day. He still thinks about why this happened to him when all he wanted was to be a good Soldier. 3. A review of the applicant’s records shows: a. He enlisted in the Regular Army (RA) on 3 October 1978. He reenlisted on 29 June 1981. b. On 25 February 1982, he accepted non-judicial punishment (NJP) for failing to be at his appointed place of duty and intent to defraud, falsely altering the date on a sick call slip. c. On 3 June 1982, he accepted NJP for failing to be at his appointed place of duty. He was reduced to E-3. d. On 31 September 1982, he accepted NJP for failure to be at his appointed place of duty. He was reduced to E-1. e. On 23 August 1983, court martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave from 9 March 1983 thru 20 August 1983. f. On 24 August 1983, 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, (Discharge in Lieu of Trial by Court-Martial). In his request for discharge, he acknowledged: * maximum punishment * he was advised of the basis for the contemplated separation action under provisions of chapter 10, AR 635-200 * he was advised of the effect on future enlistment in the Army, the possible effects of a general discharge under honorable conditions and the rights available to him * he understood if he were issued a general discharge, he could expect encounter substantial prejudice in civilian life * he would may be ineligible for many or all benefits administered by the Veterans Administration g. Consistent with the chain of command recommendations, on 8 November 1983, the separation authority approved the applicant’s request for discharge and directed his character of service as under other than honorable conditions. h. On 1 December 1983, he was discharged from active duty under the provision of Army Regulation 635-200, chapter 10. He completed 4 years, 7 months and 22 days of active service. He has lost time during the periods of: * 25 January 1982 thru 2 February 1982, * 11 August 1982 thru 12 August 1982 * 24 August 1982 thru 31 August 1982 * 29 November 1982 thru 1 December 1982 * 14 December 1982 thru 14 December 1982 * 25 January 1983 thru 26 January 1983 * 7 February 1983 thru 9 February 1983 * 9 March 1983 thru 18 August 1983 i. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 4. By regulation, a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may submit a request for discharge in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate for a Soldier who is discharged for the good of the service. 5. In reaching its determination, the Board can consider the applicants’ petition in his service record in accordance with 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 partial relief was warranted. Based upon the multiple AWOLs and other UCMJ offenses, the Board concluded that the characterization of service received at the time of discharge was appropriate. However, the Board did note that the applicant had a prior term of honorable service which was not currently reflected on his DD Form 214. For that reason, the Board recommended amending the applicant’s DD 214 to annotate that honorable term of prior service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable service 19781003 to 19810628”. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge under other than honorable conditions. 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. 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. 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 the regulation states that 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. 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. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 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. ABCMR Record of Proceedings (cont) AR20180000378 5 1