ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 July 2019

	DOCKET NUMBER:  AR20180005540


APPLICANT REQUESTS:  an upgrade to his under other than honorable conditions discharge, all awards and his military education during this period

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States)
* DA Form 2-1 (Personnel Qualification Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 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:

     a.  He wishes to have his DD Form 214 amended to include his continuous honorable service and a separate DD Form 214 that will only show this period of service.  He would also like for all awards and education that were achieved during this honorable period to be shown on his DD Form 214, to include his Good Conduct Medal.  

     b.  He believes an error exists because what is listed on his DA Form 2-1 (Personnel Qualification Record) is not listed on his DD Form 214 and that this error disqualifies him from any military benefits to include medical treatment and he feels that it is unjust.  His initial enlistment was concluded as honorable and should be recognized as such.

3.  The applicant provides a copy of his DD Form 4, his 1st reenlistment showing there was more than one period of service, his DA Form 2-1, showing where he received a Good Conduct Medal and credit for the 10 Week Medical Specialist course, a 2 week Power Generator Mechanic course, and his DD Form 214.

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

	a.  He enlisted in the Regular Army on 19 January 1983 and reenlisted on 16 August 1985 for a period of 3 years. 

	b.  He served overseas in Korea from 28 June 1983 until 29 June 1984, and 15 May 1986 until 11 May 1987.

	c.  On 21 March 1985, he accepted non judicial punishment, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to maintain sufficient funds in his bank account, enough to cover checks written from 14 December 1985 to 27 December 1985.  

	d.  On 6 October 1987, he departed his unit it an absent without leave (AWOL) status, was dropped from the rolls on 5 November 1987 and was apprehended by civilian authorities on 17 May 1988 and returned to military control. 

	e.  According to his DD Form 458 (Charge Sheet), dated 1 June 1988, court-martial charges were preferred against him for one specification of going AWOL on 6 October 1987 and did not return to military control until 17 May 1988.

	f.  On 1 June 1988, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under UCMJ and the possible effects of a bad conduct or dishonorable discharge, if the request is approved and the procedures and rights available to him.

	g.  Following consultation with counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* 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

	h.  His chain of command recommended he be discharged for the good of the service with an under other than honorable conditions discharge.  

	i.  Consistent with the chain of command's recommendation, on 21 June 1988, the separation authority approved his request for discharge under the provisions of AR 635-200, Chapter 10, and directed the issuance of an under other than honorable conditions discharge and a reduction in rank to private/E-1.

	j.  His DD Form 214 shows he was discharged on 5 July 1988, for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions.  He completed 4 years, 10 months and 6 days of active service, with lost time from 6 October 1987 to 17 May 1988.  He was awarded or authorized the:

* Army Service Ribbon
* Overseas Service Ribbon
* Army Commendation Medal
* Army Achievement Medal (First Oak Leaf Cluster)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

5.  On 1 May 1989, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing, but found it proper and equitable.  The ADRB denied his request for an upgrade of his discharge. 

6.  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).

7.  By regulation, 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

8.  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 misconduct including a lengthy AWOL offense which only ended as a result of apprehension by civilian authorities, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the offenses leading to his separation, the Board concluded that the characterization of service received at the time of separation was appropriate.  However, the Board did note that the applicant had a prior period of honorable service which was not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service.

Additionally, based upon a documentary review of the applicant’s record, the Board concluded that all awards outlined in the record were accurately depicted on the applicant’s DD Form 214.

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 adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 19 January 1983 until 15 August 1985.”
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.
	 
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 635-8 (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).

3.  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 (Honorable) provided 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 (General) 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.

4.  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)	 AR20180005540


5


1