ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  26 July 2019

	DOCKET NUMBER:  AR20180008843


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge to a general

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Transition Orders 239-0169 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 made a mistake, but thought he had taken care of it.  He did not realize that his discharge was under other than honorable conditions.  He was told and thought that he was given a general discharge, but recently discovered it was not.

3.  The applicant provides a copy of his transition orders which shows his report date to the transition center and a copy of his DD Form 214.  

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

	a.  He enlisted in the Regular Army on 30 March 1995.

	b.  DD Form 458 (Charge Sheet), dated 26 March 1998, special court-martial charges were preferred against him for one specification of being absent without leave on or about 4 March 1997 to 21 March 1998.

	c.  On 26 March 1998, he consulted with legal counsel and was advised of his rights. Following consultation with counsel, he subsequently requested, a discharge under the provisions (UP) 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 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
* 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

d.  Consistent with the chain of command recommendation on 6 August 1998, the
separation authority approved the applicant’s request for discharge and furnished an Under Other Than Honorable Conditions Discharge Certificate and reduced to the lowest enlisted rank of E-1.

e.  The applicant was discharged on 3 September 1998 in accordance with AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial.   His DD Form 214 shows he completed 2 years, 4 months and 12 days of net active service with lost time from 4 March 1997 to 20 March 1998.  He was awarded or authorized the:

* Army Achievement Medal
* National Defense Service Medal
* Army Service Ribbon
* Expert Marksmanship Qualification Badge Hand Grenade
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  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. 

6.  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.

7.  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 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, a lack of mitigating reason for the AWOL offense provided by the applicant, 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

:	:	:	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), 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 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//

ABCMR Record of Proceedings (cont)	 AR20180008843


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