ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 May 2019 DOCKET NUMBER: AR20180015009 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) with self-authored statement * U.S. Army Recruiting Command (USAREC) Form 589 (U.S. Army Certificate of Enlistment), dated 29 June 1983 * DD Form 214 (Certificate of Release or Discharge From Active Duty) for the period 13 September 1984 * National Personnel Records Center (NPRC) memorandum, dated 26 November 2003 * General Educational Development (GED) Certificate, dated 20 May 2004 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 went absent without leave (AWOL) due to personal and family reasons. When he returned, he was told he either face court-martial or be discharged. He was given no other option and he was unaware of the ramifications of his decision. Since his discharge he has been a model citizen and a productive member of society. He has earned his GED and has not had even a speeding ticket in the last twenty years. Additionally, he notes: * at the time he was having some problems * he took leave to go visit his parents in North Carolina * he was dealing with alcohol addiction * he has since gotten better and has a family now * he joined the church * he has been a truck driver for the same company for over 13 years * he is a natural born citizen and a productive member of society * it's his God given right to carry a fire arm based on the way society is going * he is a long distance truck driver and he wants have protection on him * he can't get his conceal and carry permit due to the type of discharge he received * he feels he should not be denied his right due to a poor decision * he did not harm anyone but himself with his decision to be discharged from the Military 3. The applicant enlisted in the Regular Army on 30 August 1983. 4. Court-martial charges were preferred against the applicant on 19 July 1984 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about 7 June 1984 through on or about 16 July 1984. 5. The applicant consulted with legal counsel on 20 July 1984. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised that he could submit any statements he desired in his own behalf. His election shows he elected not to submit a statement in his own behalf. 6. The separation authority approved the applicant's discharge on 17 August 1984, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. 7. The applicant was discharged on 13 September 1984. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court martial, and his service was characterized as UOTHC. 8. Army Regulation 635-200 is the governing Army regulation for administrative separations. 9. The Board should consider the applicant's statement in accordance with the published liberal consideration and equity, injustice, and clemency determination guidance. BOARD DISCUSSION: 1. The Board reviewed the application, the evidence of record and published guidance for the liberal consideration of and clemency determinations for requests for discharge upgrades. The Board considered his statement, the nature of the misconduct as well as the applicant’s short period of service and determined that the punishment was too harsh. 2. After reviewing all of the available evidence, the Board determined that relief was warranted. 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 reissuing the DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 13 September 1984 with a character of service as General, under honorable conditions. 2. The Board further determined that relief in excess of that above is denied. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, U.S. Code, 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. b. Paragraph 3-7b provides that 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. c. Chapter 10 of the regulation in effect at the time provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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. ABCMR Record of Proceedings (cont) AR20180015009 0 4 1