ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20190001073 APPLICANT REQUESTS: The applicant requests his under conditions other than honorable (UOTHC) discharge be upgraded 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150013478 on 8 December 2016. 3. The applicant states when he enlisted, he didn’t understand the outcome of his actions and didn’t realize the responsibility. 4. On 15 February 1983, the applicant enlisted in the Regular Army. 5. On 6 September 1984, he received non-judicial punishment (NJP) for the purpose of avoiding service as an enlisted person, feign illness. 6. On 28 December 1984, he was listed as absent without leave (AWOL) until on or about 2 January 1985. 7. On 30 January 1985, he was charged with: * failure to be at his appointed place of duty * AWOL from on or about 28 December 1984 to on or about 2 January 1985 * steal property of the United States Government valuing $965.92 * 8. On 25 February 1985, he was discharged accordingly. His DD Form 214 shows he completed 2 years, 6 days. 9. His record is void of a separation packet. His DD Form 214 shows: * Separation Date: 25 February 1985 * Net Active Service: 2 years, and 6 days * Separation Authority: AR 635-200, Chapter 10 * Type of Separation: Discharge * Character of Service: Under Other Than Honorable Conditions * Lost Time: 5 days 10. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 11. His record shows he received an Army Achievement Medal and a Parachutist Badge. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board discussed his length of service, the nature of the applicant’s misconduct that included stealing government property, the lack of mitigating factors, the applicant’s statement and if clemency should be applied. The Board determined that the character of service was appropriate for the misconduct that led to his separation. 2. After review of the application and all supporting documents, the Board determined that relief was not warranted. 1. 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. X CHAIRPERSON 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, 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 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. 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. 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. 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, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral a. 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.