1. ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20180004857 APPLICANT REQUESTS: an upgrade of his under other than honorable condition discharge. 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 at the age of 17, he graduated basic combat and infantry advanced individual training. He received a letter of commendation while serving with the 1st Cavalry Division. He returned to Fort Benning to attend and eventually graduate the basic airborne course. At the young age of 18, he was assigned to the 82nd Airborne Division. In a moment of confusion or perhaps weakness, he was absent without leave (AWOL). During his time in service, he was awarded the Army Service Ribbon, a letter of commendation, and fired expert with his M-16 rifle. He asks that the Board take this into account as they consider upgrading his discharge to honorable. 3. The applicant’s service records shows: a. The applicant enlisted in the Regular Army on 29 August 1979. b. On 8 November 1982, court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice. His DD Form 458 (Charge Sheet), indicates he was charged with one specification of AWOL from 27 March 1981 to 8 November 1982. c. On 17 November 1982, the applicant consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (in lieu of trial by court-martial). In his request, he acknowledged: * he understood the maximum punishment * he was guilty of the charge against him or of a lesser included offense which authorized a punitive discharge * he did not desire further rehabilitation or a desire to perform further military service * he acknowledged that if his discharge was accepted, he may be discharged under conditions other than honorable and the effects of the discharge * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a Veteran under both federal and state law * he was advised he could submit any statements he desired in his own behalf; it shows he did not elect an option * he did not submit any statements in his own behalf d. The applicant revealed to the immediate commander his AWOL was a result of personal problems. He was unable to fully adjust to military life and wanted out of the Army. He stated he became dissatisfied with the Army while assigned to the 1st Cavalry Division at Fort Hood, Texas. In view of the applicant’s attitude toward the military, and his lack of rehabilitative potential, his immediate commander recommended approval of the discharge action with the issuance of an under other the honorable conditions discharge. e. On 20 December 1982, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge in lieu of trial by court-martial. He was reduced to private/E-1 and issued an Under Other Than Honorable Discharge Certificate. f. On 11 January 1983, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200 with his service characterized as under other than honorable conditions. He completed 1 year, 7 months, and 20 days of active service with 630 days of lost time. His DD Form 214 also shows he was awarded or authorized: * Army Service Ribbon * Parachutist Badge * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Tow Gunner Bar * Sharpshooter Marksmanship Qualification Badge with Grenade Bar g. 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 member who has committed an offense or offenses to which the punishment includes a bad conduct 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. 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 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 1-13a (Honorable Discharge) states 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 (General Discharge) states 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 sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 10 of that regulation provides, that a member who has committed an offense or offenses, the punishment for any of which, includes a bad conduct or dishonorable discharge my submit a request for discharged 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. If warranted, however, the discharge authority may direct an honorable or general discharge. 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) AR20180004857 4 1