ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 July 2019

	DOCKET NUMBER:  AR20180002323


APPLICANT REQUESTS: 

* An upgrade of his under other than honorable condition discharge
* A personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

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 the Red Cross notified him and his unit that his child was sick; so, he left his unit at Fort Campbell, KY to go home to his sick child in Grand Rapids, MI.  His command ordered him back before his child was better and he refused.  

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

a. He enlisted in the Regular Army on 26 October 1983.

	b.  He was reported absent without leave (AWOL) on 14 March 1986 and dropped from the rolls as deserter on 11 April 1986.  He ultimately returned to military control on 29 February 1992. 

c.  According to his DD Form 458 (Charge Sheet), dated 10 March 1992, court-
martial charges were preferred against him for one specification of being AWOL from 14 March 1986 until 29 February 1992.

He consulted with legal counsel who advised him of the contemplated trial by 
court-martial and the maximum permissible punishment authorized under Uniform Code of Military Justice 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.

d. On 10 March 1992, 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 under no circumstances did he desire further rehabilitation, he had no desire to preform further military service
* 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

e. On 10 March 1992, his chain of command recommended he be discharged
for the good of the service with an under other than honorable conditions discharge.  

f. 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 and if he was serving in a pay grade above E-1 at the time of discharge he would be reduced to private prior to execution of the discharge.

g. His DD Form 214 shows he was discharged on 9 April 1992, 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 2 years, 5 months and 29 days of net active service, with lost time from 14 March 1986 to 29 February 1992.


h. His record also shows he was awarded or authorized the:

* Army Service Ribbon
* Expert Qualification Badge with M-16 
* Air Assault Badge
* Second Class Qualification Badge with Hand Grenade
	i.  There is no evidence the applicant has applied to the Army Discharge Review 
Board for review of his discharge within that board's 15-year statute of limitations.

4.  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

5.  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:

The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

After review of the application and all evidence, the Board determined relief is not warranted.  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.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the lengthy period 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), 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)	 AR20180002323


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