ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  17 July 2019

	DOCKET NUMBER:  AR20180010093


APPLICANT REQUESTS:  an upgrade of his characterization of service from under other than honorable conditions to under honorable conditions (general).

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, he opted out of extending his enlistment due to medical reasons.  An upgrade will help with his medical disability benefits status.

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

	a.  He enlisted in to the Regular Army (RA) on 13 August 1986.  He served in Korea from 13 February 1987 to 12 February 1988.

	b.  He was discharged on 12 July 1989 for immediate reenlistment.  He reenlisted on 13 July 1989 in to the RA. 

   c.  He deployed in support of the Gulf War while assigned to Germany.

	d.  A DA Form 458 (Charge Sheet) shows his command preferred court marital charges on 9 October 1992 on him for one specification of failure to obey a lawful order, and three specifications of AWOL:

* for a period of one day from 3 September 1992 to 4 September 1992
* for a period of 8 days from 5 September 1992 to 12 September 1992
* for a period of 6 days from 3 October 1992 to 9 October 1992

	e.  He consulted with legal counsel on 13 October 1992 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

	f.  His chain of command recommended approval of his request for discharge.  Consistent with the chain of command's recommendation, on 16 October 1992, the separation authority approved the applicant’s request for discharge for the good of the service with an under other than honorable conditions discharge, and directed he would be reduced to private/E-1.

	h.  The applicant’s DD Form 214 shows he was discharged accordingly on 22 October 1992 under the provisions of AR 635-200, Chapter 10 with an under other than honorable conditions characterization of service.  He completed 6 years, 2 months and 1 day of active service and had 8 lost days.  He was awarded or authorized:

* Army Commendation Medal
* Good Conduct Medal
* National Defense Service Medal
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)
* Southwest Asia Service Medal with 3 Bronze Service Stars
* Kuwait Liberation Medal 
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

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.  By regulation (AR 635-8), Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” will have “Continuous Honorable Active Service for dates which a
DD Form 214 was not issued, until the date before their current enlistment.

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 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 multiple periods of AWOL, offenses of a criminal nature, 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.

However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service.
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 adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 13 August 1986 until 12 July 1989.”

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 upgrading the characterization of his discharge.
	 
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 (Personnel Separations – Enlisted Personnel) sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance.

	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. 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.

	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.

3.  AR 635-8 (Personnel Separations – Separation Processing and Documents), prescribes the transition processing function of the military personnel system.  This new regulation provides principles of support, standards of service, policies, tasks, rules, and steps governing required actions in the field to support processing personnel for separation and preparation of separation documents.

4.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180010093


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