ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  11 July 2019

	DOCKET NUMBER:  AR20180003999


APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* 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 would like an upgrade to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a general or honorable discharge, because, he was not present to sign his discharge.

3.  The applicant provides a self-authored statement asking for assistance with upgrading his discharge status.  He was a young man with no true understanding of being a Soldier and the concept of military life, so he made some mistakes.  He admits his mistakes and short comings as a Soldier, but felt his lifelong status of an “under other than honorable conditions” discharge is unfair.  During his period of service, he received many citations and awards for his work performance and skills.  It is this period he felt should qualify him to have his discharge status upgraded to a general or an honorable status.

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

	a.  He enlisted in the Regular Army on 10 June 1980.

	b.  He served in Germany from 26 November 1980 to 23 May 1982.

	c.  On 2 August 1982, he departed his unit in an absent without leave (AWOL) status and returned on or about 20 October 1982.

	d. Court-martial charges were preferred against the applicant.  His DD Form 458 (Charge Sheet) shows he was charged with one specification of being absent without leave (AWOL) from 2 August 1982 to 20 October 1982.

	e.  After consulting with legal counsel, the applicant requested discharge from the Army in lieu of trial by court-martial in accordance with Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, .  He acknowledged: 

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* 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

	f.  His chain of command recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge

	g.  Consistent with the chain of command's recommendation, the separation authority approved his request for discharge on 3 December 1982, under the provisions of AR 635-200, Chapter 10, and directed the issuance of an under other than honorable conditions discharge certificate and reduced to the lowest enlisted grade of Private/E-1.

	h.  His DD Form 214 shows he was discharged on 15 March 1973, for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions.  It also shows he completed 2 years, 2 months and   24 days of net active service with lost time from 1 July 1982 to 22 July 1982 and            2 August 1982 to 19 October 1982.  

     i.  His record also shows he was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon and Sharpshooter Marksmanship Qualification Badge (Rifle).

5.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service.  The ADRB was unable to process his case any further, due to the statutory requirement under the appeal option.

6.  By regulation, a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

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 partial relief was warranted.  Based upon the length of honorable service completed prior to the AWOL offense which resulted in the applicant’s separation, the Board concluded that upgrading the characterization of service to Under Honorable Conditions (General) was appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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).
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to Honorable.
	 
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, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 1-13a provided that an honorable discharge is a separation with honor.  Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude.

   b.  Paragraph 1-13b provided that a general discharge is a separation from the army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

   c.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service

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.


ABCMR Record of Proceedings (cont)	 AR20180003999


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