ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 August 2019 DOCKET NUMBER: AR20180012490 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable or 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 that no one told him he could request an upgrade. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 20 October 1976. He was honorably released from active duty 19 October 1979. b. He again enlisted for the Regular Army on 12 March 1980. He served in Hawaii from 31 August 1982 to 20 November 1984. c. He was honorably discharged 16 September 1985 for immediate reenlistment. He reenlisted on 17 September 1985. d. He accepted non judicial punishment under Article 15 on/for: * 22 July 1986, being absent without leave (AWOL) from 20 June 1986 to 23 June 1986 and 2 July 1986 to 17 July 1986 (punishment included forfeiture of $261 per month for one month, suspended, 14 days of restriction, suspended, and 14 days of extra duty) * 18 September 1986, being AWOL from 30 July 1986 to 6 August 1986 and 7 August 1986 to 15 August 1986 and wrongful use of cocaine (punishment included reduction to E-4, forfeiture of $300 per month for 2 months and 30 days of extra duty) e. On 15 October 1986, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) indicates he was charged with three specification of AWOL: * 2 September 1986 to 4 September 1986, * 24 September 1986 to 26 September 1986 * 1 October 1986 to 15 October 1986. f. On 21 October 1986, he consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 for the good of the service in lieu of court martial. He acknowledged: * maximum punishment * he is guilty of the charge(s) against him or of lesser included offense(s) * he did not desire further rehabilitation or further military service * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate * he may be deprived of many or all Army benefits administrated by the Veteran Administration * he may be deprived of his rights and benefits of a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge * he elected to submit a statement on his own behalf, it is unavailable for review by the Board g. On 7 November 1986, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge for the good of the service. He would be discharged with an Under Other Than Honorable Conditions Discharge Certificate and reduced to the lowest enlisted grade h. On 17 November 1986, he was discharged from active duty under the provision of AR 635-200, chapter 10 with an under other than honorable conditions discharge characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 months and 2 days of active service with lost time shown from 860620-860622, 860702-860706, 860730-860805, 860807-860817, 860902-860903, 860925-860925 and 861001-861014. It also shows he was awarded or authorized: * Army Good Conduct Medal with 3rd Award * Overseas Service Ribbon * NCO Professional Development Ribbon * Army Achievement Medal * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 4. By regulation, an individual whose conduct has rendered him triable by court-martial for an offense punishable by 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 is normally appropriate for individuals discharged for the good of the service. 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. In reaching it 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 partial relief was warranted. Based upon a pattern of misconduct and a lack of specificity on what family issues were occurring at the time of misconduct by the applicant, the Board concluded that the characterization of service received at the time of separation was appropriate. However, the Board did note that the applicant had a prior period of honorable service that 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 12 March 1980 until 16 September 1985.” 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d states an (Honorable Discharge) is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length or service, grade and general aptitude. b. Paragraph 1-9e states a (General Discharge) is a separation from the Army under honorable conditions of an individual whose military records is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security. c. Chapter 10 of the regulation in effect at the time (and the version currently in effect) provides 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. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 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 the 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, 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 upgrade service characterization. ABCMR Record of Proceedings (cont) AR20180012490 4 1