IN THE CASE OF:

BOARD DATE:  3 June 2019

DOCKET NUMBER:  AR20190003091


APPLICANT REQUESTS:  The applicant requests an upgrade of his under other than 
honorable conditions discharge to general.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Report of Separation from Active Duty)
*	VA Form 21-4138 (Statement in Support of Claim)
*	Divorce Decree

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:

	a.  He was stationed at Fort Belvoir, Virginia and went home on leave in September 
of 1978 to get married in Alabama.  He went to get his wife and daughter.  Two (2) 
weeks after getting back from Alabama his wife’s parents came to get his wife and 
daughter without his consent.  This really bothered him.  He kept going back home to 
Alabama to reconcile with his wife, but to no avail.  His wife told him their marriage was 
over, and he does not know why she left.  

	b.  He asked the military to give him leave, but that did not work.  He wants the 
Board to know this [breakup with his wife] really had an impact on his military career.  
He needed counseling, but he asked to get out of the military to try to work it [his 
marriage] out.  His wife divorced him for no grounds.  He sent a copy of the divorce 
decree as evidence to show it was her and not him.  He wants the Board to know he 
has been happily married for 29 years and they have a daughter.  He also wants the 
Board to consider upgrading his discharge and to approve Department of Veterans 
Affairs’ (VA) benefits.                    
3.  On 1 June 1978, at the age of 21 years old, the applicant enlisted in the Regular 
Army for a period of 4 years.

4.  A review of the applicant’s record revealed a history of indiscipline.  

a.  He was absent without leave (AWOL) on 4 separate occasions for a total of 31 
days.  

b.  He received non-judicial punishment on 4 separate occasions for:   

*	being AWOL on 4 occasions 
*	altering an official document with the intent to deceive 
*	failing to be at his appointed place of duty on multiple occasions  

5.  On 22 January 1979, a physical examination and mental status evaluation cleared 
the applicant for administrative separation.

6.  On 9 March 1979, the applicant’s commander notified him of his intent to 
recommend him for separation under the provisions of chapter 14, Army Regulation 
(AR) 635-200 (Personnel Separation – Enlisted Personnel), for misconduct based on 
frequent incidents of a discreditable nature with civil or military authorities.  

	a.  The applicant was advised of his rights, consulted with military counsel and 
submitted a statement on his behalf, it states, in pertinent part: 

		(1)  Since he has been in the Army the treatment he has been afforded has 
progressively gotten worse.  Was not being treated like a man.  He does not deny being 
AWOL for 30 days.  AWOL is a serious offense in the military, but the punishment 
received was excessive.   For the field grade article 15 he received maximum 
permissible punishment of 45 days extra duty, 45 days restriction and forfeiture of one 
half of one month pay for two months.  He also received the maximum permissible 
punishment for the company grade article 15 he received.  

		(2)  The loss of pay and the restriction caused a severe family hardship on him 
and his family.  Add this to the fact he had not been allowed to work in his military 
occupational specialty.  His family consists of his wife and three children.  He joined the 
Army in hopes to start a new life for them.  He felt the Army could offer him a chance at 
a better life.  Due his financial problems his family was not at Fort Belvoir with him, but 
currently living with his mother-in-law.  His AWOL's were the result of this situation, he 
wanted to see his family and needed to get home to solve some of the difficulties 
between his wife and mother-in-law. 

		(3)  He asked permission to go home to resolve his family problems, but due to 
the situation at hand he took a longer leave than he was granted.  During the extended 
period he kept in touch with his unit and attempted to explain the situation; however, 
even though he made every attempt to remedy the situation, he still received and article 
15.   His family problems continued and in December his daughter became ill, the 
doctor believed she has leukemia, her blood was not circulating through her body, his 
concern was so great that he did not even ask for time off, he just left. 

		(4)  He returned and informed his captain of the situation, he knew he was 
wrong, he made a mistake, he feels the article 15 paired with the discharge was too 
severe considering the circumstances.  The discharge would ruin his career, credit and 
family…all that he had.  He needed help.  If discharged he would struggle finding 
employment, if retained he would be treated less than a man.  He was black and being 
treated fairly is almost impossible, he talked to supervisor about working in his MOS but 
was denied.  He had talked to his entire chain of command concerning his problems, 
but his cries were ignored.  

	b.  His chain of command recommended approval of his discharge and to waive 
rehabilitative transfer.  The applicant’s case was reviewed by the legal office and 
determined to be legally sufficient for separation action deemed appropriate by his chain 
of command.  The separation authority approved his discharge with an under other than 
honorable conditions character of service, and waived the requirement for rehabilitative 
transfer.        

7.  On 4 May 1979, the applicant was discharged accordingly.  He completed 10 months 
and 2 days of net active service.  He had 31 days of lost time, and was not awarded a 
personal decoration.  

8.  On 13 February 1987, the Army Discharge Review Board determined the applicant 
was properly discharged.  His request for a change in the type and nature of his 
discharge was denied.

9.  AR 635-200, chapter 14 states that action will be taken to separate a member for 
misconduct when it is clearly established that rehabilitation is impracticable or is unlikely 
to succeed.  A discharge under other than honorable conditions is normally appropriate 
for a Soldier discharged under this chapter.  However, the separation authority may 
direct a general discharge if such is merited by the Soldier's overall record.   

10.  In reaching its determination, the Board should consider the applicant's petition, his 
service record, and his statement in light of the published Department of Defense 
guidance on equity, injustice, or clemency.  

11.  Entitlement to VA benefits is neither within the purview of this Board nor is it 
normally considered a basis for granting relief.                                           




BOARD DISCUSSION:

After review of the application and all evidence, the Board determined that there is 
sufficient evidence to grant 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 that he had been going through a divorce and found 
the statement and evidence of previous honorable inactive service to be compelling.  
Therefore, the Board found sufficient mitigating evidence to grant clemency and 
upgrade the discharge.

BOARD VOTE:

Mbr 1
Mbr 2
Mbr 3

:X
:X
:X
GRANT FULL RELIEF
:
:
:
GRANT PARTIAL RELIEF
:
:
:
GRANT FORMAL HEARING
:
:
:
DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by amending the applicant’s 
DD Form 214 for the period ending “79-05-04” showing his characterization of service 
as “General Under Honorable Conditions,” the narrative reason as 
“Miscellaneous/General Reasons,” the separation code (SPD) as “JND”, and Authority 
as “AR 635-200, para 5-14.”


 

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 (Personnel Separations - Enlisted Personnel) sets forth 
the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct.  Specific categories include minor disciplinary infractions, a pattern of 
misconduct, commission of a serious offense, and convictions by civil authorities.  
Action will be taken to separate a member for misconduct when it is clearly established 
that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other 
than honorable conditions is normally appropriate for a Soldier discharged under this 
chapter.

	b.  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.

	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.
  
     a.  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.  
    
     b.  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.  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//
ABCMR Record of Proceedings (cont)	 AR20190003091
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ABCMR Record of Proceedings (cont)	AR20190003091


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