ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 July 2019

	DOCKET NUMBER:  AR20180004831


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
)
*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)

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 that he thinks that he deserves the discharge upgrade because 
he was suffering from depression.  While on active duty, he served a portion of his time 
with honor.

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

	a.  He enlisted in the Regular Army (RA) on 17 February 1988.

	b.  He served in Germany from 9 May 1988.
]
	c.  Court Martial charges were preferred on 18 December 1989.  DD Form 458 
(Charge Sheet) indicates that he was charged with two specification of absence without 
leave (AWOL), one specification of dereliction of duty for failure to obtain air passage 
and return to his unit.

	d.  On 29 December 1989, the applicant consulted with legal counsel and was 
advised of the basis for the contemplated trial by court-martial for an offense punishable 
by a bad conduct or dishonorable discharge, the maximum permissible punishment 
authorized under the Uniform Code of Military Justice, the possible effects of a request 
for discharge, and the procedures and rights available to him.  Following consultation 
with legal counsel, he requested discharge for the good of the service in lieu of trial by 
court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he 
acknowledged:

*	He was making this request of his own free will and had not been subjected to 
any coercion whatsoever by any person
*	He understood by requesting a discharge he was admitting guilt to the charges 
against him or of lesser-included offenses that also authorized the imposition of a 
bad conduct discharge or a dishonorable discharge
*	He acknowledged he understood if his discharge request were approved, he 
could be deprived of many or all Army benefits
*	He acknowledged he could be ineligible for many or all benefits administered by 
the VA and he could be deprived of his rights and benefits as a veteran under 
both Federal and State laws
*	He stated that under no circumstances did he desire further rehabilitation or to 
perform further military service
*	He elected not to submit a statement on his own behalf

	e.  The Staff Judge Advocate (SJA) trial counsel recommended acceptance of the 
applicant’s chapter 10 request.  He further states that the resources saved in foregoing 
a court-martial would make accepting the chapter 10 request with an under other than 
honorable discharge most advantageous for the government.

	f.  On 12 January 1990, his chain of command recommended separation in 
accordance with AR 635-200 paragraph 10-3b for the good the service.

	g.  On 21 January 1990, the SJA reviewed the request for discharge in accordance 
with AR 625-200, chapter 10 and recommended approval with the issuance of an under 
other than honorable conditions discharge. 

	h.  On 21 January 1990, the separation authority approved separation discharge in 
accordance with AR 625-200, chapter 10 with the issuance of an under other than 
honorable conditions discharge. 

	i.  He was discharged from active duty on 8 February 1990.  His DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows that he was discharged in 
accordance with AR 635-200, chapter 10 for the good of the service-in lieu of court-
martial with an under other than honorable character of service.  He completed 1 year, 
and 10 months of active duty service with 49 days of lost time.  

4.  The applicant’s record is void of evidence that show he applied for a discharge 
upgrade with the Army Discharge Review Board within 15 years of the separation.

5.  By regulation, AR 635-200, chapter 10 of this regulation states a Soldier who has 
committed an offense or offenses, the punishment for which, under the UCMJ and the 
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.  A Soldier who is under a suspended sentence of a punitive discharge may 
likewise 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 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 his voluntary request for discharge in lieu of court-martial, the 
Board determined he admitted guilt to a criminal offense in which his command 
preferred charges that could have resulted with a BCD.  Based on the short term of 
honorable service completed prior to a pattern of misconduct, as well as his 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 1-9d (Honorable Discharge) states an honorable discharge is a 
separation with honor.  Issuance of an honorable discharge will be conditioned upon 
proper military behavior and proficient performance of duty during the member’s current 
enlistment of current period of service with due consideration for the member’s age, 
length of service, grade and general aptitude.

	b.  Paragraph 1-9e (General Discharge) states a general discharge is a separation 
from the Army under honorable conditions of an individual whose military record is not 
sufficiently meritorious to warrant an honorable discharge.  When a member’s service is 
characterized as general, except when discharge by reason of misconduct, unfitness, 
and unsuitability.

	c.  Chapter 10 of this regulation states a Soldier who has committed an offense or 
offenses, the punishment for which, under the UCMJ and the 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.  A 
Soldier who is under a suspended sentence of a punitive discharge may likewise 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180004831

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