ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  10 July 2019

	DOCKET NUMBER:  AR20180006149


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
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 he is trying to get Veteran Affairs benefits.  At the time, he was just young and stupid and made a big mistake in life.

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

	a.  He enlisted in the Regular Army on 20 August 1980.

	b.  On 12 August 1986, DD Form 458 (Charge Sheet), shows court-martial charges were preferred against him for three specifications of absent without leave from

* 18 September 1982 until 20 September 1982
* 8 March 1983 until 15 March 1983
* 5 April 1983 until 23 July 1986

	c.  On 13 August 1986, he consulted with counsel and was advised of the contemplated trial by court-martial for an offense punishable by a bad conduct or a dishonorable discharge.  Subsequent to that, he requested discharge under the provisions (UP) of chapter 10, (for the good of the service) Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel).  He also acknowledged the following:

* he understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate 
* as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State law
* understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

	d.  On 15 August 1986, his immediate and intermediate commanders recommended approval of his discharge request under the provisions of chapter 10 of AR 635-200 and issuance of a discharge under other than honorable conditions.  

	e.  On 19 August 1986, the separation authority approved discharge for the good of the service.  He directed the applicant be furnished an under other than honorable conditions discharge and reduced to private/E-1.

	h.  On 17 September 1986, he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions character of service in the rank of private/E-1 for the good of the service in lieu of court-martial.  He served 2 years, 9 months, and 1 day.  He was awarded the Marksmanship Qualification Badge (M-16 Rifle), Army Service Ribbon, Overseas Service Ribbon, Driver Badge, and the Driver and Mechanic Badge with W Bar.

4.  By regulation, AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An under other than honorable conditions discharge will normally be furnished an individual 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 multiple AWOL offenses and the length of the final AWOL offense, 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(1) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member'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.  Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted.

	b.  Paragraph 3-7b(1) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization.  It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty.

	d.  Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An Undesirable Discharge Certificate will normally be furnished an individual who is discharged 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180006149


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