ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  9 July 2019

	DOCKET NUMBER:  AR20180004155


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)

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 in Germany and his mother had a nervous breakdown and was admitted to the hospital.  His master sergeant put him on leave and told him to sign into a unit near his home but no unit would accept him and he ended up being absent without leave (AWOL).  He was then arrested and discharged for doing what he was told to do.  The applicant states he previously submitted a request for upgrade but can’t remember the case number or date.

3.  A review of the applicant service record shows:

	a.  He enlisted in the Regular Army on 11 February 1987.

	b.  He served in Germany from 12 June 1987 until on or about 31 January 1988.

	c.  On 1 February 1988, he was reported absent without leave (AWOL) and on 2 March 1988, he was dropped from the rolls as a deserter. 

	d.  On 8 July 1988, he was apprehended by Military Police West Virginia for AWOL and returned to a Personnel Control Facility at Fort Dix, NJ.

	e.  On 18 July 1988, the applicant signed a DA Form 3881 (Rights Warning Procedure/Waiver Certificate) and was interviewed.  During the interview the applicant stated:

* he wanted to stay in the service
* he was counseled regarding a waiver of a physical
* he does not desire the medical examination for separation

	f.  On 3 August 1988, court-martial charges were preferred against the applicant.  His DD Form 458 (Charge Sheet) shows he was charged with one specification of AWOL from 1 February 1988 to 8 July 1988.

	g.  On 3 August 1988, the applicant consulted with counsel and was advised of the requested discharge for the good the service in lieu of court-martial in accordance with chapter 10 of the Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel).  He acknowledged: 

* he was making this request of his own free will and had not been subject to any coercion whatsoever by any person
* by submitting this request for discharge, he understood the elements of the offense charged and he is guilty of the charge against him
* he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service
* as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and 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 understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge
* he understood he may submit any statement in his own behalf, no statement will be submitted

h. On 10 August 1988, the chain of command recommended approval of the 
discharge request.

i. On 22 August 1988, the separation authority approved the discharge action 
under the provisions of Chapter 10, AR 635-200 for the good of the service and directed that he be discharged under other than honorable conditions.

j. On 29 September 1988, the applicant was discharged.  His DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of court-martial, his service was characterized as under other than honorable conditions and he was reduced to the lowest enlisted rank.  He completed 1 year, 2 months and 12 days of active service with lost time from 1 February 1988 to 7 July 1988.  He was awarded or authorized the:

* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Badge Grenade
* Expert Marksmanship Badge Mortar

4.  By regulation, a Soldier who has committed an offense or offenses, the punishment for which, under the UCMJ and the Manual of Court-Martial 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:

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 relatively short term of honorable service completed prior to a lengthy AWOL offense which only ended by an apprehension by military authorities, 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)	 AR20180004155


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