ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20180006863 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States (U.S.)) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC85-00880 on 27 March 1985. 2. The applicant states in May 1987 his grandmother passed away. He told his first sergeant (1SG) and he said he would put the proper paper work in. However, the 1SG failed to do so, and he was considered absent without leave (AWOL). He returned after 1 week and was placed in jail for about 30 days. X___ , another Soldier and friend took him to Chicago. X___ was actually AWOL and received a general discharge. Why would the U.S. Army treat Soldiers differently for the same reason? He tried to be the very best Soldier he could be. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 20 February 1986. b. On 28 August 1986, he received a letter of reprimand (LOR) from Brigadier General X___ for a civil conviction on 8 August 1986. On 16 September 1986 he acknowledged receipt of the LOR. c. He accepted non-judicial punishment under the provisions of Article 15 for the following: * between 7 April and 6 May 1986 he used marijuana, forfeiture of $200 and 15 days extra duty * on 29 January 1987 he disobeyed a lawful order, reduction to private E1, forfeiture of $172 per month for 1 month, 14 days restriction, and 14 days extra duty (on 5 March 1987 it was deemed that the forfeiture of pay was in excess of the authorized amount of $153 and was set aside) * on 21 February 1987 he broke restriction and on 22 February 1987 he failed to report to his place of duty, forfeiture of $300 per month for 2 months (suspended until 7 June 1987), 45 days restriction, and 45 days extra duty, vacated due to breaking restriction on 11 and 14 April 1987 * on 25 March 1987 he willfully and unlawfully altered DD Form 689 (Individual sick slip), forfeiture of $329 per month for 2 months, 45 days restriction, and 45 days extra duty d. DA Form 4187 (Personnel Action) and DD Form 458 (Charge Sheet), dated 27 April 1987 shows the following: * AWOL from 17-27 April 1987, broke restriction * confined civil authorities (CCA) on 27 April 1987 * present for duty (PDY) from 27 April 1987, escaped custody * CCA from 27 April 1987 * PDY from 22 May 1987 e. On 12 May 1987, he consulted with counsel and was advised of his rights. Following consultation with legal counsel, he voluntarily requested a discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. He did not specify if he would submit a statement in his own behalf. He further acknowledged: * he understood that if his discharge request was accepted, he could be discharged under other than honorable conditions with an under other than honorable discharge certificate * he could be deprived of many or all Army benefits and 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 both Federal and State laws and may encounter substantial prejudice in civilian life * he may apply to the Army Discharge Review Board (ADRB) or the ABCMR for a review of his characterization of service; however, the act of consideration does not imply an upgrade of his discharge f. On 19 May 1987, his immediate and intermediate commander initiated the request for discharge. They recommended that the applicant be discharged for the good of the service under the provisions of AR 635-200. g. On 20 May 1987, his senior commander recommended approval to discharge the applicant with an other than honorable discharge. h. On 21 May 1987, the separation authority approved the applicant’s discharge for the good of the service with an under other than honorable conditions discharge. i. He was discharged from active duty on 27 May 1987, under the provisions of Army Regulations 635-200, Chapter 10, for the good of the service with an under other than honorable conditions characterization of service. He completed 1 year, 2 months and 28 days of net active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized the: * Army Service Ribbon * Marksman Marksmanship Qualification Badge (M-16) * Sharpshooter Qualification Badge (Grenade) 4. By regulation (AR 635-200), a Soldier member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The issuance of a discharge under the provisions of chapter 10, AR 635-200, would have required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of a trial by court-martial. 5. In reaching its determination, the Board can consider the applicants’ petition in his service record in accordance with 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 relief was not warranted. Based upon the short term of honorable service completed prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of separation was appropriate. 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 , states 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. Only the honorable characterization may be awarded a Soldier upon completion of his or her period of enlistment or period for which called or ordered to active duty (AD) or AD training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. (See paragraph 3-9a and chapter 11). When a Soldier is discharged before expiration of term of service for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the uniform code of justice (UCMJ) Article 15. Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge. An honorable discharge may be furnished when disqualifying entries in the soldier's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. Unless otherwise ineligible, a Soldier may receive an honorable discharge if he or she has, during his or her current enlistment, period of obligated service, or any extensions thereof, received a personal decoration. b. Paragraph 3-7b, states 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 AD. c. Chapter 10 of this regulation provides that a Soldier who has committed an offense or offenses, the punishment for any of which, under the UCMJ and the Manual for Courts-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. A Soldier who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge 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. ABCMR Record of Proceedings (cont) AR20180006863 4 1