ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 August 2019 DOCKET NUMBER: AR20180009937 APPLICANT REQUESTS: a reconsideration of an upgrade of his characterization of service from under other than honorable conditions to under honorable conditions 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. 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 AR20110010528 on 3 January 2012. 2. The applicant states, he was told that he could have his discharge upgraded after a few years, that’s why he accepted a Chapter 10 discharge. He now knows that it was a bad mistake and never thought he would have to go through so much to get an upgrade. When he was stationed in Germany, he went home on leave, but did not have any leave days accrued. He was given 30 days of leave after passing an inspection, and receiving a letter of commendation. He is currently a pastor at a small church with about 50 people in North Carolina. 3. A review of the applicant’s service records shows the following: a. He enlisted in to the Regular Army (RA) on 12 February 1976. He served in Germany from 15 July 1976 to 4 July 1978. b. On 23 April 1976, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 for one specification of failure to at appointed place of duty. c. On 5 May 1976, the applicant accepted NJP under the provisions of Article 15 for one specification of failure to at appointed place of duty. d. On 2 February 1977, the applicant accepted NJP under the provisions of Article 15 for one specification of AWOL from 25 January 1977 to 29 January 1977. His punishment consisted in part, reduction to private/E-2 (suspended). e. Court martial charges were preferred on 13 October 1978. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of AWOL for a period of 98 days from 5 July 1978 to 12 October 1978. f. He consulted with legal counsel on 18 October 1978 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * the maximum punishment if found guilty * if his request was accepted, he may be discharged under other than honorable conditions * if approved, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge g. Consistent with the chain of command's recommendation, on 3 November 1978, the separation authority approved the applicant’s request for discharge for the good of the service with an under other than honorable conditions discharge. He would be reduced to private/E-1. h. On 15 November 1978, he was discharged from active duty under the provisions of AR 635-200, Chapter 10 with an under other than honorable conditions characterization of service. He completed 2 years, 5 months and 23 days of active service and had 128 lost days. 4. 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. 5. The applicant applied to the ABCMR on 4 January 2012, the Board determined that the overall merits of this case are insufficient as a basis for correction of his records. The Board denied his request in full. 6. By regulation (AR 635-200), an individual 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. A discharge under other than honorable conditions normally is appropriate for a soldier who is discharged for the good of the Service. 7. By regulation (AR 635-200), a member who requests discharge as prescribed in chapter 10 will be given a reasonable time (not less than 72-hours) to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. Consulting counsel will advise the soldier accordingly. Commanders will insure that a soldier will not be coerced into submitting a request for discharge for the good of the Service. 8. 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 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 complete prior to a pattern of misconduct, as well as a lack of mitigating reasons for the lengthy AWOL offense, 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 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 Under Other Than Honorable Conditions discharge is normally considered appropriate. a. Chapter 10, of this regulation, states 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. b. 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. c. 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. 2. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20180009937 4 1