ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 July 2019

	DOCKET NUMBER:  AR20180006880

APPLICANT REQUESTS:  

* an upgrade of his under other than honorable conditions discharge to general under honorable conditions
* correct first name on DD Form 214 (Certificate of Release or Discharge from Active Duty)
* personal appearance before the Board

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:

a.  His discharge was unjustified because he was readily available and waiting for
legal counsel, which he did not get.  His name was also misspelled and he is requesting the United States Army to upgrade or change his discharge to a general under honorable conditions.

   b.  In addition, the wording on his current DD Form 214 (Certificate of Release or Discharge from Active Duty) is incorrect, because it states the enlisted member was not available for signature.  He was available; however, he was in the stockade awaiting disciplinary actions.  He finds it hard to believe that no one could locate him.  The papers were sent to him at the stockade, which shows proof that the command knew his location.  He was also rushed into signing his discharge papers and having read his paperwork he noticed certain errors.


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

	a.  He enlisted in the Regular Army on 10 July 1980.

	b.  He accepted nonjudicial punishment on/for:

* 3 September 1980, for being absent without leave (AWOL) on or about          1 September 1980 at 2000hrs until 1 September 1980 at 2045hrs
* 23 September 1980, for wrongful possession of marijuana 

	c.  His DD Form 458 (Charge Sheet), dated 23 June 1981, special court-martial charges were preferred against him for one specification of AWOL on about                   1 December 1980 to 17 June 1981.

	d.  On 24 June 1981, he consulted with legal counsel and was advised of his rights. Following consultation with counsel, he subsequently requested, a 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 this request, the applicant admitted guilt to the offense, or a lesser included offense.  In his request, he acknowledged:

* he did not desire further rehabilitation or a desire to perform further military service
* Ii his discharge was approved, he may be discharged with an under other than honorable conditions 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 could expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge

e.  Consistent with the chain of commands recommendations on 9 July 1981, the
separation authority approved the applicant’s request for discharge and furnished an Under Other Than Honorable Conditions Discharge Certificate.

   f.  The applicant was discharged on 20 July 1981 under the provision of AR 635-200, Chapter 10.  He completed 5 months and 21 days of net active service with lost time from 1 December 1980 to 16 June 1981.  He was awarded or authorized the Marksmanship Qualification Badge with Rifle Bar (M-16).

	g.  On 29 August 1989, the applicant applied to the Army Discharge Review Board for an upgrade, but his request denied and it was determined that he was properly and equitably discharged.

4.  By regulation, discharges under the provision of AR 635-200, Chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court-martial.

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.

6.  In regards to the applicant’s request for an appearance before the Board, 
AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires

BOARD DISCUSSION:

The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

After reviewing the application and all supporting documents, the Board found that some relief was warranted.  The applicant’s contentions were carefully considered.  His record shows his first named spelled “TXXXIE” instead of “TXXXY” as indicated on his DD Form 214.  The Board agreed this error should be corrected.

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 short term of honorable service completed prior to a pattern of misconduct, which included a lengthy period of AWOL, 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

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 amending item 1 on his DD Form 214 for the period ending 20 July 1981 by showing his first name as “Tommie.”

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 changing his character of service and a personal appearance.
	 
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 Regulations 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

	a.  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.  When a Soldier is discharged before ETS 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).

	b.  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 that a Soldier 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.  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 discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment.

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 character.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180006880


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