ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  31 July 2019

	DOCKET NUMBER:  AR20180006157


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

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 would like his discharge to be upgraded to general on the grounds that he was informed that the upgrade would happen automatically.

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

	a.  He enlisted in the Regular Army on 15 March 1983 and reenlisted on
14 March 1986 for continuous service.

	b.  DD Form 458 (Charge Sheet), dated 26 February 1988, court-martial charges were preferred against the applicant for one specification of being absent without leave (AWOL) on or about 17 August 1987 to 22 February 1988.

	c.  On 26 February 1988, he consulted with legal counsel and he requested a discharge in lieu trial by courts-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10.  He acknowledged:

* he was guilty of the charge against him or of a lesser included offense(s) therein contained which also authorize(s) the imposition of a bad conduct discharge or dishonorable discharge
* he did not desire further rehabilitation or a desire to perform further military service
* if his discharge was approved, he may be discharged with a bad conduct discharge or dishonorable 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 may expect to encounter substantial prejudice in civilian life

	d.  Consistent with the chain of command recommendations the discharge was approved by the separation authority on 24 March 1988, he was reduced to the lowest enlisted rank of Private/E-1 and issued an Under Other Than Honorable Conditions Certificate in accordance with AR 635-200, Chapter 10.

	e.  On 15 April 1988, he was discharged from active duty under the provision of 
AR 635-200, Chapter 10.  His DD 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 6 months and 27 days of net active service with lost time from 17 August 1987 to 21 February 1988.  He was awarded or authorized the Army Service Ribbon and the Army Good Conduct Medal.

4.  There is no evidence that the applicant applied to the Army Discharge Review Board for an update of his discharge.   

5.  By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

6.  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 lengthy period of AWOL, as well as the failure to provide any mitigating factors for the AWOL offense by the applicant, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service.
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 15 March 1983 until 13 March 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 635-200 (Personnel Separations - Enlisted Personnel), 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 and entitles the recipient to benefits provided by law.  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.

   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.  

   c.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180006157


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