ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF

	BOARD DATE:  26 July 2019

	DOCKET NUMBER:  AR20180011193


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions (UOTHC) discharge.

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:

	a.  He would like his record to be upgraded to a general discharge under honorable conditions.  He served his country during the Gulf War, and the only reason he had to go absent without leave (AWOL) was his wife at the time.  He had an outstanding military record and on the fast track to sergeant/E-5.  He scored a 196 on the promotion board, only four points from a perfect score.  His next duty station was Korea which he was looking forward to experiencing; unfortunately, he had some personal issues with his wife and was unable to go to Korea.  He did follow his chain of command and spoke with his commander and also the chaplain.  He is not saying it was the wisest of choices, but it was a decision of a 21 year old who still had a lot to learn made at that time.  He believes it was unjust because he knew the military had made changes for situations with a soldier’s family

	b.  He would like to have his discharge upgraded to at least a general discharge.   Even though he did not retire as planned he will always bleed Army green.  He will always be a 13 Bravo whether he gets his discharge upgrade or not.  He believes that the military molds the young when they join.  He is sure that anyone sitting on this Board has made a decision when they were his age that they regret, believe it or not his was getting married to someone that he is no longer with and he chose her over the Army.  He is asking that the Board look in their hearts and do the right thing.  He would like to state for the record he did fight for this country honorably during the Gulf War.

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

a. He enlisted in the Regular Army on 3 August 1990.

b. He served in Saudi Arabia from 13 December 1990 to 6 April 1991.

c. On 11 August 1993, court martial charges were preferred.  His DD Form 458 
(Charge Sheet) indicates he was charged with one specification of AWOL for a period 
of 67 days from 1 June 1993 to 6 August 1993.

   d.  On 12 August 1993, he consulted with legal counsel on and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge in Lieu of Trial by Court-Martial).  He acknowledged:

* the maximum punishment if found guilty
* he did not desire further rehabilitation
* if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate
* 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
* he did not submit any statements on his behalf

	e.  On 25 August 1993, his unit commander subsequently recommended approval of the applicant’s request.

	f.  On 27 August 1993, consistent with the chain of command's recommendation, the separation authority approved the applicant’s request for discharge in lieu of trial by court-martial with an under other than honorable conditions discharge.  He would be reduced to the lowest enlisted pay grade.

   g.  On 20 September 1993, he was discharged from active duty under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial) with an under other than honorable conditions characterization of service.  He completed 3 years, 9 months, and 20 days of active service.  It also shows he was awarded or authorized:

* Army Service Ribbon
* National Defense Service Medal
* Southwest Asia Service Medal with 2 bronze service stars
* Army Achievement Medal
* Kuwait Liberation Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Hand Grenade

4.  On 31 January 1997, the Army Discharge Review Board (ADRB) reviewed the applicant’s case and found his discharge proper and equitable.  The ADRB denied his request for an upgrade.

5.  By regulation 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.  An Under Other Than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service in lieu of trial by court-martial.

6.  In reaching its determination, the Board can consider the applicant’s petition and her 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, 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 Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, 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 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 on the basis of 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)	 AR20180011193


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