ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20180001447 APPLICANT REQUESTS: an upgrade to his under other than honorable discharge characterization 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) * Character Reference from his spouse * Character Reference from his mother * 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 he was having emergency family issues with his wife at the time, and he is requesting an upgrade to his discharge. 3. The applicant provides: a. A character reference from his current spouse which talks about how the applicant’s family has always meant everything to him. He made some mistakes as a young Soldier and in turn made a hasty decision that has haunted him for many years. She says, he wishes he was wiser then and done things differently. b. A character reference from his mother which states the applicant had issues with poor health as a child and enlisting in the military was his first major accomplishment. In addition, his family issues have caused the hardships he faced as a young Soldier and his main concern was to keep his newly formed family together. He wishes now, that he knew about hardship discharges. c. He also provides a detailed self-authored statement describing the sequence of events which have contributed to his discharge. He has since changed his life, by opening and running two successful companies and he is currently enrolled full time in college. 4. A view of the applicant’s service record shows: a. He enlisted in the Regular Army on 29 February 1989. b. On 3 January 1990, he departed his unit in an absent without leave (AWOL) status and did not return to military control until 4 January 1990. c. On 2 July 1990, he departed his unit in an AWOL status and did not return to military control until 11 July 1990. d. He accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, (UCMJ) on 20 July 1990 for going AWOL from 2 July 1990 to 11 July 1990. He was reduced to the grade of private (E-2). e. On 23 July 1990, he departed his unit in an AWOL status and did not return to military control until 4 August 1990. f. He accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, (UCMJ) on 4 Aug 1990 for going AWOL from 23 July 1990 to 4 August 1990. He was reduced in grade to the grade of private (E-1). g. On 5 September 1990, he departed his unit in an AWOL status and was dropped from the rolls. He was apprehended by civilian authorities on 11 September 1991 and returned to military control the same day. h. According to his DD Form 458 (Charge Sheet), dated 26 September 1991, court-martial charges were preferred against him for one specification of AWOL from 5 September 1990 until 11 September 1991. i. On 26 September 1991, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under UCMJ and the possible effects of a bad conduct or dishonorable discharge if the request is approved and of the procedures and rights available to him. j. Following consultation with 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 indicated: * 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 approved 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 k. On 2 October 1990, his commanding officer recommended he be discharged for the good of the service with an under other than honorable conditions discharge. l. Consistent with the chain of command's recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge. m. His DD Form 214 shows he was discharged on 30 October 1991 for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions. He completed 1 year and 7 months of active service, with lost time from 3 January 1990 to 3 January 1990, 2 July 1990 to 10 July 1990, 23 July 1990 to 3 August 1990 and 5 September 1990 to 10 September 1991. His record also shows he was awarded or authorized the: * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Grenade Bar 5. By regulation, a soldier who has committed an offense or offenses, the punishment for which, under the UCMJ and the manual court-martial (MCM), 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service 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 there is insufficient evidence to grant relief. 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 record, 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. 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), in effect at the time, 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. 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 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. A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization. It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Chapter 10 of that regulation provides, in pertinent part, that a soldier who has committed an offense or offenses, the punishment for which, under the UCMJ and the manual court-martial (MCM), 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The provisions of RCM 1003(d), MCM 1984, do not apply to requests for discharge per this chapter unless the case has been referred to a court-martial-authorized to adjudge a punitive discharge. 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. 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) AR20180001447 4 1