ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20180001179 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 794A (Discharge Certificate) 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 during his time in the service he was committed to his job, barely took any leave days and was up for promotion to SGT/E-5 at the time of his discharge. He felt stagnant in his current position and wanted to change jobs. When this did not happen he made a poor choice and went AWOL, but returned quickly to Fort Bragg, North Carolina, where he was then discharged. He takes full responsibility for his actions. 3. A review of the applicant’s service record shows: a. Having prior service in the Army Reserves, he enlisted in the Regular Army on 6 December 1989. b. Court martial charges were preferred against him on 15 June 1982. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent from his unit from 8 March 1982 to 14 June 1982. He held the rank/grade of SP4/E-4. c. He consulted with legal counsel on 16 June 1982 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions. * he would be deprived of many or all Army benefits administrated by the Veterans Administration * he may be deprived of his rights and benefits of a Veteran under both ‘Federal and State laws ‘ * he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge. * once the request is submitted it may be withdrawn only with the consent of the commander exercising general court martial authority * if he departs absent without leave, this request may be processed and he may be discharged even though he is absent d. Consistent with the chain of command recommendation on 5 October 1982, the separation approval authority approved the applicants request for discharge for the good of the service. He would be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade E-1. 4. On 12 November 1982, he was discharged from active duty under the provisions of AR 635-200, chapter 10. He completed 2 years, 8 months and 1 day of active service. It also shows he was awarded or authorized the Army Service Ribbon. 5. By regulation (AR 635-200), a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge 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. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the extremely lengthy AWOL offense which led to the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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) 635-200 (Personnel Separation – Enlisted Personnel) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states and honorable discharge is a separation with honor. 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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c (Under other than honorable conditions) states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. I d. Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 3. On 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 (BCMNRs) 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 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 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. 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20180001179 3 1