ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20190004768 APPLICANT REQUESTS: The applicant requests an upgrade of his discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Medical/Dental documents 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 he knows that he was at fault, but when all options were explained to him he misunderstood. He is not blaming anyone because he did not understand at the time and was under the impression that the under other than honorable conditions discharge would be automatically upgraded in 6 months. He knows now that he did not understand and it was not made clear to him at the time. 3. On 27 October 1981, the applicant enlisted in the Regular Army for a period of 3 years. 4. On 6 June 1983 orders were issued reassigning him to Germany in accordance with his port call. He failed to report on the prescribed date to St. Louis International Airport in Missouri for further movement to Germany. His duty status was changed from assigned not joined to absent without leave (AWOL) effective 23 July 1983. 5. On 24 August 1983, after surrendering to military authorities at Fort Knox, Kentucky, the applicant’s duty status was changed from dropped from the Army’s rolls to attached/present for duty. 6. On 25 August 1983, court-martial charges were preferred against him for being AWOL from on or about 23 July to 24 August 1983. 7. On 26 August 1983, 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 635-200 (Personnel Separations – Enlisted Personnel). b. He consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial; the possible effects of an under other than honorable discharge, and of the procedures and rights available to him. c. He elected not to submit statements in his own behalf and did not desire a separation physical. d. His chain of command recommended approval of his discharge under other than honorable conditions (UOTHC). e. The separation authority approved the applicant’s discharge request for the good of the service with an UOTHC character of service. 8. On 5 October 1983, the applicant was discharged accordingly. He completed 1 year, 10 months and 8 days of net active service and had lost time from 23 July to 23 August 1983. The applicant was not awarded a personal decoration. 9. The record contains no indication of procedural or other errors that would tend to have jeopardized the applicant’s rights. 10. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. 11. Army Regulation 635-200 states that, a member who was charged with 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. In a case in which an UOTHC is authorized by regulation, 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. 12. 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. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration a discharge upgrade requests. The Board considered the applicant’s statement, the length of his service, the nature of the misconduct, his surrender to military authorities and whether to apply clemency. The Board found insufficient mitigating factors in-service and considered the applicant’s statement, with no additional post-service achievements or letters of reference in support of clemency. The Board majority determined that based in the nature of the misconduct and the circumstances of his return to military control, the character of service he received was too harsh and recommends an upgrade; one Board member found insufficient evidence to determine that the character of service was in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :x :x : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :x DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 amending his DD Form 214 for the period of service ending 5 October 1983 to show in item 24 (Character of Service) – “General, under honorable conditions”. 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 upgrade of his discharge character of service to “Honorable”. 8/5/2019 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 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 states a member who was charged with 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 discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. 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. In a case in which an UOTHC is authorized by regulation, 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. 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 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.