ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  17 July 20109

	DOCKET NUMBER:  AR20180008524


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

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 does not clearly understand his discharge.

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

	a.  He enlisted in the Regular Army on 27 February 1979.

	b.  He served overseas in Germany from 6 February 1981 to 20 June 1981.

	c.  According to his DD Form 458 (Charge Sheet), dated 11 May 1982, court-martial 
charges were preferred against him for one specification of being absent without leave 
from 21 June 1981 until 8 May 1982.

	d.  On 13 May 1982, he consulted with legal counsel who advised him of the 
contemplated trial by court-martial and the maximum permissible punishment 
authorized under UCMJ and the possible effects of a bad conduct or dishonorable 
discharge if the request is approved and of the procedures and rights available to him.

	e.  Following consultation with counsel, he requested 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 his request for 
discharge, he indicated:

*	he was making this request of his own free will and he had not been 
subjected to any coercion whatsoever by any person
*	he understood that by requesting discharge he was admitting guilt to the 
charges against him or of a lesser-included offense that also authorized the 
imposition of a bad conduct discharge or a discharge under other honorable 
conditions
*	he acknowledged he understood if his discharge request was approved he 
could be deprived of many or all Army benefits, he could be ineligible for 
many or all benefits administered by the Veterans Administration
*	he acknowledged he understood he could be deprived of his rights and 
benefits as a veteran under both Federal and State laws
*	he elected not to submit a statement on his own behalf

	f.  On 24 May 1982, his chain of command recommended he be discharged for the 
good of the service with an under other than honorable conditions discharge.  

	g.  Consistent with the chain of command's recommendation, on 26 May 1982, the 
separation authority approved his request for discharge under the provisions of AR 635-
200, chapter 10, and directed the issuance of an under other than honorable conditions 
discharge and reduced in rank to private/E-1.

	h.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows 
he was discharged on 6 June 1982 for the good of the service in lieu of trial by court-
martial with a characterization of service of under other than honorable conditions.  He 
completed 2 years, 5 months and 12 days of days of net active service, with lost time 
from 21 June 1981 to 7 May 1982.  

	i.  His record shows he was awarded or authorized the:

*	Army Service Ribbon
*	Army Commendation Medal
*	Expert Pistol Caliber 45 Qualification Badge
*	Non Commissioned Officer Professional Development Ribbon

4.  By regulation, a member who has committed an offense or offenses, the punishment 
for any of which, under the Uniform Code of Military Justice and the Manual for Courts-
Martial, includes a bad conduct or dishonorable discharge, may submit a request for 
discharge for the good of the Service.

5.  The Board should 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 a lack of character 
evidence submitted by the applicant showing he has learned and grown from the 
misconduct which led 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 (AR) 635-200, in effect at the time, sets forth the basic authority for 
the separation of enlisted personnel.  

   a.  Paragraph 1-13a provided that an honorable discharge is a separation with 
honor.  Issuance of an honorable discharge certificate is predicated upon proper military 
behavior and proficient performance of duty during the member’s current enlistment or 
period of obligated service with due consideration for the member’s age, length of 
service, grade, and general aptitude.

   b.  Paragraph 1-13b provided that a general discharge is a separation from the army 
under honorable conditions.  It is issued to a member whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.

   c.  Chapter 10 of that regulation provided, in pertinent part, that a member who has 
committed an offense or offenses, the punishment for any of which, under the Uniform 
Code of Military Justice and the Manual for Courts-Martial, United States, includes a 
bad conduct or dishonorable discharge, may submit a request for discharge for the 
good of the service.  The provisions of the Table of Maximum Punishments, Section B, 
paragraph 127c, MCM 1969 (Rev) are not applicable to requests for discharge pursuant 
to this chapter. The request for discharge may be submitted at any time after court-
martial charges are preferred against the member, regardless of whether the charges 
are referred to a court-martial and regardless of the type of court-martial to which the 
charges may be referred. The request for discharge may be submitted at any stage in 
the processing of the charges until final action on the case by the court-martial, 
convening authority. A member 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180008524

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