ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 July 2019

	DOCKET NUMBER:  AR20180003598


APPLICANT REQUESTS:  

* an upgrade of his under other than honorable conditions discharge 
* a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Letters of Support (x3)
* 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 at the time of discharge he was young, with no understanding of how the consequences would impact his life.  He would like his discharge upgraded because he is a better person and feels he has paid his debt to society for being immature at that time in his life.

3.  The applicant provides:

	a.  A letter of support from XXX which states he has known the applicant for over 20 years as a business owner and responsible member of the community.  On numerous occasions he has demonstrated outstanding character as a husband and a father.  He gives of himself freely for the welfare of family and others and he can attest to his honesty and good heart.

	b.  A letter of support from Representative XXX which states he served honorably his first tour of duty and the second was less than honorable.  As a prior service member, he understands the challenges Soldiers face and although he is not making excuses for the behavior, he recommends an honorable discharge.  The applicant is very active in church and the community.  He is a businessman that continues to give back to the community and those less fortunate.  

	c.  A letter of support from XX which states they have enjoyed a 30 year friendship that began as young Soldiers in the military.  She vouches for his excellent character and strong work ethic.  He provides assistance to a paralyzed neighbor, has helped other neighbors with transportation to dialysis during inclement weather, and he donates from his business and caters for families during their bereavement.  He serves in numerous roles as an active member of the church and is the proud father of six children and three grandchildren.

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

a. He enlisted in the Regular Army on 15 August 1984.

   b.  He served in Germany from 9 January 1985 to 13 December 1986.  Was advanced to specialist four/E-4 on 1 March 1986 and he reenlisted on 19 February 1988. 

   c.  The record is void of the DD Form 458 (Charge Sheet).  Other documents show court-martial charges were preferred against the applicant for violating the Uniform Code of Military Justice.

	d.  On 22 March 1989, after consulting with legal counsel he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  He acknowledged:

* maximum punishment
* he was guilty of the charges against him or of a lesser included offense
* he does not desire further rehabilitation or further military service
* if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* he would be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life

	e.  On 2 May 1989, consistent with the chain of command recommendations, the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be issued an Under Other Than Honorable Condition Discharge Certificate and reduced to the lowest enlisted pay grade.

	f.  On 1 June 1989, he was discharged from active duty with an under other than honorable conditions characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 9 months, and 17 days of active service with no lost time.  It also shows he was awarded or authorized:

* Army Service Ribbon
* Good Conduct Medal
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar

4.  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. 

5.  By regulation, (AR 635-200) an individual who has committed an offense or offenses, the punishment for any of which includes a bad conduct discharge or dishonorable discharge, may submit a request for discharge for the good of the service.  An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service.

6.  By regulation, (AR 15-185) an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  

7.  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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that it could make a fair and equitable decision without a personal appearance by the applicant.

Additionally, the Board also determined that relief was warranted.  Based upon the overall good service record of the applicant and the good character evidence provided, as well as a lack of evidence concerning the specific misconduct which resulted in the applicant’s separation, the Board concluded that granting some clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate.

The Board also noted that the applicant had a period of prior honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).
Additionally, a review of the applicant's records shows his DD Form 214 omitted administrative entries in the Remarks block.  As a result, amend the DD Form 214 by adding the entry "Continuous honorable service 19840815 to 19880218."
	 
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 Separations – 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 an 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.  Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for any of which includes a bad conduct discharge or dishonorable discharge, may submit a request for discharge for the good of the service.  An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service.

3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

   a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

   b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

4.  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).

5.  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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  

ABCMR Record of Proceedings (cont)	 AR20180003598


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