ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20190001287 APPLICANT REQUESTS: * upgrade of his under other than honorable conditions discharge * a separate DD Form 214 (Certificate of Release or Discharge from Active Duty) for his periods of honorable service * personal Board appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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 during his attempt to get medical help he was informed that he should have been given a second DD Form 214 that showed the years of honorable service that he served in the military. He also adds that since he did not receive legal counsel which could have informed him of his rights and consequences before being discharged, this alone should be enough for him to apply for a discharge upgrade. 3. On 1 October 1982, the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP). His record shows on: * 8 December 1982, he was discharged from the USAR DEP and enlisted in the Regular Army for a period of 3 years * 18 June 1985, he immediately reenlisted in the Regular Army for a period of 5 years * 20 August 1986, he received non-judicial punishment (NJP) for breaking restriction; he elected to appeal and it was denied * 15 February 1990, he was absent without leave (AWOL) * 20 February 1990, he surrendered himself to military control/authorities * 17 December 1990, he immediately reenlisted in the Regular Army for a period of 5 years * 18 October 1991, he received NJP for writing two (2) bad checks * 18 February 1992, he was AWOL * 18 March 1992, he was dropped from rolls * 16 April 1992, he surrendered to military authorities 4. On 27 April 1992, court-martial charges were preferred against the applicant for being AWOL from 18 February to 16 April 1992. 5. On 28 April 1992, the applicant voluntarily requested a discharge for the good of the service in-lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He consulted with legal counsel and was advised of the basis for his contemplated trial by court- martial, its effects, his available rights, and the basis for voluntarily requesting discharge under the provisions of chapter 10, AR 635-200. a. He elected not to submit statements in his own behalf and acknowledged that he had personally made the choice and was not coerced by any person. b. Consistent with the chain of command’s recommendation, the separation authority approved the applicant’s discharge request for the good of the service with an under other than honorable conditions discharge certificate. 6. On 1 June 1992, he was discharged accordingly. He completed 11 years, 3 months, and 19 days of net active service. He had lost time from 15 to 19 February 1990 and 18 February to 16 April 1992. His DD Form 214 shows in item 18 (Remarks) “Immediate reenlistments this period: 821001 – 850617; 850618 – 901216; 901217” and that he was awarded or authorized the: * Army Achievement Medal * Army Good Conduct Medal (second award) * Army Service Ribbon * Overseas Service Ribbon * Army Occupation Medal (Berlin) * Sharpshooter Badge with Rifle Component Bar 7. The applicant contends he did not receive legal counsel; however, the records show he did consult with counsel. The record contains no indication of procedural or other errors that would tend to have jeopardized the applicant’s rights. 8. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 9. Army Regulation 635-200, chapter 10 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. 10. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After review of the application and all evidence, and in addition to the administrative notes below the signature, the Board determined that there is sufficient evidence to grant partial relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found the statement and evidence of honorable achievements in the form of an Army Achievement Medal, two good conduct medals and at least eight years of honorable service to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s honorable service and achievements have mitigated the misconduct resulting in the discharge characterization. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 in addition to the notes below the signature line, all Department of the Army records of the individual concerned be corrected by changing the applicant’s discharge characterization on his DD Form 214 to “Honorable.” 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 the personal appearance. X 6/18/2019 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): According to AR 635-5 and AR 635-8 a review of the applicant's record shows his DD Form 214, for the period ending 1 June 1992, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 821208 UNTIL 901216 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. Army Regulation 635-200 (Personnel Separations) provides the basic authority for the separation of enlisted personnel. The regulation also provides for the following characters of service: a. 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. 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. An under other than honorable conditions discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. 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 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 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. //NOTHING FOLLOWS//