ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20180008576 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general or honorable 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 has been an outstanding citizen, but he was young back then. SGT X ordered him to leave for 90 days and then come back and that is what he did. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 16 July 1976 followed by an immediate reenlistment on 17 May 1979 for continuous service. b. He accepted nonjudicial punishment on/for: * 27 December 1979 for failing to be at his appointed place of duty * 23 September 1981 for being absent without leave (AWOL) on or about 18 September 1981 to 23 September 1981 c. DD Form 458 (Charge Sheet), dated 5 October 1982 shows court-martial charges were preferred against him for one specification of AWOL on or about 6 February to 30 September 1982. d. On 6 October 1982, he consulted with legal counsel and he requested a discharge for the good of the service 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 e. Consistent with the chain of command’s recommendation to be discharged for the good of the service with an under other than honorable discharge, on 22 November 1982, the separation authority approved the applicant’s request. f. On 9 December 1982, he was discharged from active duty under the provision of AR 635-200, Chapter 10. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 11 months and 3 days. He has lost time from 17 September to 22 September 1981 and 16 February to 29 September 1982. g. He was awarded or authorized the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle (M-16) and the Good Conduct Medal. 4. 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. 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. 1. 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 guidance for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board considered the applicant's record, the lengthy period of AWOL, the frequency and nature of his misconduct and the absence of a statement accepting responsibility or showing remorse. The applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider in making a clemency determination. Based on a preponderance of evidence, the Board determined that the applicant's discharge characterization was warranted as a result of the misconduct; there was insufficient evidence of an error or injustice. 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. 8/21/2019 X CHAIRPERSON Signed by: 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 1. 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//