ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 July 2019 DOCKET NUMBER: AR20180006678 APPLICANT REQUESTS: an upgrade of his 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. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 21 November 1979. He reenlisted on 19 November 1982 and 18 December 1986. b. He served in Germany from 29 March 1980 to 1 February 1982 and from 30 January 1984 to 29 January 1987. c. The applicant’s service record is void of the DD Form 458 (Charge Sheet). Other documents indicate court-martial charges were preferred against the applicant for violation of the Uniform Code of military Justice (UCMJ). d. On 20 December 1988, he consulted with legal counsel and was advised of the contemplated trial by court-martial. He subsequently requested discharge under the provisions of chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service, in lieu of trial by court-martial. In his request he acknowledged: * maximum punishment * he understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge * he understood if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an Undesirable Discharge Certificate * if an under other than honorable conditions discharge was issued, he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the Veterans Administration and benefits of a Veteran under Federal and State law * he elected to not submit a statement on his own behalf e. The immediate commander recommended approval and indicated he had reviewed the Request for Discharge for the Good of the Service in the applicant's case and in view of his pending court-martial, he recommended the applicant be issued an Other Than Honorable Discharge. The intermediate commander also recommended approval. f. Consistent with the chain of command’s recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200 for the good of the service and directed the applicant receive an under other than honorable conditions discharge, and reduction to the lowest enlisted grade. g. On 3 January 1989, he was discharged from active duty. His DD 214 (Certificate of Release or Discharge from Active Duty) show she was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service – in lieu of court martial. His characterization of service is an under other than honorable conditions. He completed 9 years, 1 month, and 3 days of active service. He was awarded or authorized the: * Army Service Ribbon * Overseas Service Ribbon * Driver Badge w/Wheel Vehicle Device * Army Good Conduct Medal (1st Award * Sharpshooter Marksmanship Qualification Badge with Rifle Bar h. 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. 3. By regulation (AR 635-200), chapter 10 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. 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 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 a lack of information available for review, include a lack of any statement submission on behalf of the applicant stating why a correction should be made, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service. However, the Board did note that the applicant had a period of prior honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict the military service of the applicant. 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 21 November 1979 until 17 December 1986.” 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. 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. a. Paragraph 3-7 (a) (Honorable Discharge). States 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 3-7(b) (General Discharge) states 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. 3. 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). 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) AR20180006678 4 1