ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 29 March 2019 DOCKET NUMBER: AR20180000564 APPLICANT REQUESTS: The applicant requests his under than honorable conditions (UOTHC) discharge be upgraded to under honorable conditions (general) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Self-authored statement 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, in effect, his discharge was his separation was inequitable, unjust, disproportionate, biased and prejudicial. 3. On 2 December 1987, at the rank of private first class (PFC/E3) he enlisted in the Regular Army. 4. His record contains a memorandum, subject: Admission of absent without leave (AWOL) for Administrative purposes, undated that shows, he was advised by counsel that at the present time the government has not received the required documentation to obtain a conviction by a court-martial. a. Counsel could not properly advise the applicant without the required records. The applicant acknowledged all this to be true and waived all defenses that may have been know had his could been able to review his records. b. The applicant knowingly, willingly, and voluntarily declared he was AWOL from the U.S. Army from 2 March 1989 to 9 July 1989 (4 months, 2 days.) He made this admission for administrative purposes only so he may process out of the Army and realize in doing so he may be given an UOTHC discharge. 4. On 19 July 1989 he declined a separation medical examination. 5. On 25 July 1989 he was charged for be AWOL from his organization from 2 March 1989 to 9 July 1989. 6. A checklist for administrative discharge actins shows he was AWOL on two occasions and received non-judicial punishment. 7. On 26 July 1989 the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He signed a request for discharge for the Good of the Service and indicated he would not submit statements in his own behalf. a. The applicant's chain of command recommended approval of his request and the appropriate separation authority approved the applicant's request directing he be reduced to the pay grade of private/E1 and receive a UOTHC b. On 24 August 1989 he was discharged accordingly. His DD Form 214 shows he completed 1 year, 4 months and 5 days and shows he was awarded or authorized the Army Service Ribbon. 8. The applicant submits a self-authored letter providing an overview of his service, pointing out to the Board he was a PFC when he entered the service. He was doing okay and served as a platoon guide and at the top of his class. His first duty assignment was Fort Bragg, NC where he was a squad leader, a truck driver and also worked as a cannoneer. He was excelling; however during this time things were not going well at home so he started drinking and drugging to cope with his problems. He was eventually demoted and received an Article 15. a. He tried to stay clean but failed, continued to get high and went AWOL. In today’s Army Soldiers are afforded substance abuse and counseling though a Drug and Alcohol Abuse Program. b. He believes had he been afforded similar counseling after his initial incident the second incident may never had happened. Prior to his initial infraction he was serving honorably. He believes his discharge was inequitable because it was based on one isolated incident in 1 year and 1 month of service with only one other adverse action. He loves the U.S. Army as if he was still serving; if only he had the opportunity to receive help how his service would have been different. 9. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 10. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions 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 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. (Optional as applicable.) 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 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. 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. a. 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 on the basis of 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. b. 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) AR20180000564 2 1