ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 June 2019 DOCKET NUMBER: AR20180013411 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for review of Discharge or Dismissal from the Armed Forces of the United States) * Promotion Certificate to specialist/E4 * Letter of Appreciation * Letter of Commendation 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, as of 2017 he has had two heart surgeries. On his original DD Form 214 (Certificate of Release or Discharge from Active Duty) he is classified as under other than honorable. His local Department of Veterans Affairs (VA) hospital will not help him with this kind of character of service. He request his DD Form 214 be upgraded to honorable. 3. The applicant provides: * Promotion Certificate to specialist/E4 * Letter of Appreciation for a superior performance on a joint exercise * Letter of Commendation for his exceptional firing at the range 4. A review of the applicant’s service records shows the following. a. He enlisted in the Regular Army on 14 April 1983. b. On 9 November 1984, he departed his unit in an AWOL (absent without leave) status and on 8 December 1984, he was dropped from rolls a deserter. He returned to military control on or about 24 May 1985. c. On 6 June 1985, court-martial charges were preferred against him. A DD Form 458 (Charge Sheet) shows he was charged with one specification of being AWOL from 9 November 1984 to 24 May 1985. d. On 12 June 1985, he consulted with legal counsel. Counsel advised him of the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request for discharge, he acknowledged he was aware and understood all of his rights. In his request for discharge, he acknowledged: * He was making this request of his own free will and had not been subjected to coercion by any person * he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he acknowledged he understood if the discharge request was accepted, he could be deprived of many or all Army benefits that he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he stated that under no circumstances did he desire further rehabilitation or to perform further military service * he elected not to submit a statement in his own behalf e. Consistent with the chain of command recommendation, on 10 July 1985, the separation authority approved his request for discharge under the provisions of chapter 10 of AR 635-200, and directed his service be characterized under other than honorable conditions and reduce to private/E1. f. On 31 July 1985, the applicant was discharged from active duty. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable condition characterization of service. He completed 1 years, 9 months, and 1 day of active service. His lost time was from 9 July 1984 – 24 May 1985. He was awarded or authorized the Army Service Ribbon and Expert Marksmanship badge M-16 with Expert Grenade Bar. 5. 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. An Under Other Than Honorable Conditions Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 6. 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 there is insufficient evidence to grant relief. 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 short term of service prior to the lengthy AWOL offense which led to the applicant’s discharge, 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13 (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. b. Paragraph 1-13b (General discharge) A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 1-13c (Under other than honorable conditions) A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for security reasons, or for the good of the service d. Paragraph 11-2 (Bad Conduct Discharge ) A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and ABCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, ABCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20180013411 4 1