ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20190005451 APPLICANT REQUESTS: The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service was characterized as general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .DD Form 293 (Application for the Review of Discharge or Dismissal from theArmed Forces of the United States) .Photographs (x2) .Department of Veterans Affairs (VA) Document FACTS: 1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states he served 2 years and 11 months without any incidents. Hewas an outstanding Soldier. His service in Germany was spotless. He got married andthe problems began. At the time of discharge he was told he could go back to his unit inpay grade E-1 or he could get a discharge under the provisions of chapter 10 and get itupgraded later. His general discharge is keeping him from getting healthcare. Theapplicant indicates he is sending a military medical report [however, he provided VAinstructions for filing a claim] and two photographs, one shows an individual with abroken leg. 3.On 28 August 1984, the applicant enlisted in the Regular Army for 4 years. Heserved in military occupational specialty 11B (Infantry). He was assigned to Germanyfrom 13 December 1984 through 4 December 1986. On 27 January 1987 he wasassigned to Fort Campbell, KY and was reported absent without leave (AWOL) from hisunit from 28 April 1987 until he was apprehended by civilian authorities in in LaGrange, IL, and returned to military control at the Personnel Control Facility, Fort Campbell on 9 February 1988. Pay grade E-4 was the highest grade he held. 4.On 22 February 1988, court-martial charges were preferred against the applicant forthe above period of AWOL. 5.On 23 February 1988, he consulted with legal counsel and requested discharge forthe good of the service in lieu of trial by court-martial. He signed a memorandumstating he had been advised of his rights and he acknowledged he understood he couldbe deprived of many or all Army benefits, he could be ineligible for many or all benefitsadministered by the Department of Veterans Affairs, and he could be deprived of hisrights and benefits as a veteran under both Federal and State laws. He alsoacknowledged he understood that, if he desired a review of his discharge, he mustapply to the Army Discharge Review Board or the Amy Board for Correction of MilitaryRecords, and the act of consideration by ether board did not imply the discharge wouldbe upgraded. He declined to submit statements in his own behalf. 6.On 6 April 1988, both the applicant’s unit and intermediate commandersrecommended separation under the provisions of chapter 10, Army Regulation 635-200,for the good of the service, in lieu of court-martial, with an UOTHC discharge. 7.On 11 April 1988, the appropriate authority approved the applicant's request forseparation and directed the issuance of an UOTHC discharge, in pay grade E-1. 8.On 23 May 1988, he was discharged accordingly. The DD Form 214, he was issuedshows he completed 2 years, 11 months, and 15 days of active service, had lost timefrom 28 April 1987 through 8 February 1988 [287 days], and was awarded or authorizedthe Sharpshooter Marksmanship Qualification Badge for the Rifle (M-16) and HandGrenade and the Overseas Service Ribbon. 9.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel. This regulation also provides that a member who has committed an offenseor 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.Although an honorable or general discharge is authorized, an UOTHC discharge isnormally considered appropriate. 10.He contends he served 2 years and 11 months without incident. His generaldischarge is keeping him from getting healthcare and provides page 3 of a VA letter, aswell as photographs of a person in a cast; however, neither the applicant nor hisavailable records provides documentation that shows he incurred injury while on activeduty. The available records show he was discharged for being AWOL 287 days and hecompleted almost 3 years of his 4 year enlistment obligation. 11.In making its determination, the Board can consider the applicant’s contentions andhis service record in accordance with the published equity, injustice, or clemencydetermination guidance. BOARD DISCUSSION: 1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records and published DoD guidance for consideration of dischargeupgrade requests. The Board considered the applicant’s statement, his record ofservice, the frequency and nature of his misconduct, the reason for his separation andwhether to apply clemency. The Board found insufficient evidence of in-servicemitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination.Based on a preponderance of evidence, the Board determined that the character ofservice the applicant received upon separation was not in error or unjust. 2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation, in effect at the time, provides 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, an UOTHC discharge is normally considered appropriate. 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. 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 based on 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.