ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  25 July 2019

	DOCKET NUMBER:  AR20190006432


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be 
upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S.  
Code (USC), Section 1552 (b); however, the Army Board for Correction of Military 
Records (ABCMR) 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 had orders to Germany and was going to take his family with 
him but his orders were changed at the last minute.  He went to the Judge Advocate 
General's office and was told by the officer he spoke to that he should go absent without 
leave (AWOL).  He followed this advice, turned himself in, and received a general 
discharge.  He would do things differently now but back then although he knew better 
he was young and made a mistake. 

3.  The applicant enlisted in the Regular Army on 11 October 1974.  He was honorably 
discharged on 2 August 1977 for the purpose of immediate reenlistment.  He was 
issued a DD Form 214 (Report of Separation from Active Duty) for this period that 
confirms his service was characterized as honorable.

4.  The applicant reenlisted in the Regular Army on 3 August 1977.  

5.  The applicant was assigned to duty in Germany effective 8 September 1978.  His 
unit reported him AWOL on or about 18 October 1978.  He returned to military control 
on or about 23 February 1979 by reason of apprehension by military authorities.

6.  Court-martial charges were preferred against the applicant on 28 February 1979 for 
violations of the Uniform Code of Military Justice (UCMJ).  The DD Form 458 (Charge 
Sheet) shows he was charged with being AWOL from on or about 18 October 1978 
through on or about 23 February 1979.

7.  The applicant consulted with legal counsel on 1 March 1979.

	a.  He was advised of the basis for the contemplated trial by court-martial, the 
maximum permissible punishment authorized under the UCMJ, the possible effects of 
an under other than honorable conditions discharge, and the procedures and rights that 
were available to him.  

	b.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provision of Army Regulation 635-200 (Personnel Separations – 
Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-
martial.  In his request for discharge, he acknowledged his understanding that by 
requesting discharge, he was admitting guilt to the charge against him, or of a lesser 
included offense that also authorized the imposition of a bad conduct or dishonorable 
discharge.  He further acknowledged he understood that if his discharge request was 
approved he could be deprived of many or all Army benefits, he could be ineligible for 
many or all benefits administered by the Veterans Administration, and he could be 
deprived of his rights and benefits as a veteran under both Federal and State laws.  

	c.  He was advised he could submit any statements he desired in his own behalf.  
His request for discharge indicates he declined to submit a statement.

8.  The applicant's commander recommended approval of the applicant's request for 
discharge on 14 March 1979 and recommended that his service be characterized as 
under other than honorable conditions (UOTHC).  She noted the applicant:

*	had enlisted on 11 October 1974 and reenlisted on 3 August 1977
*	had a charges pending for AWOL
*	had received two prior Article 15s (nonjudicial punishment) 
*	had returned to military control through military apprehension
*	had went AWOL because his family was unable move to Germany with him 
*	desired to be discharged because he had a better paying civilian job and if 
returned to duty would go AWOL again
*	when offered possible hardship discharge or compassionate reassignment, had  
stated he did not desire to make application

9.  The separation authority approved the applicant's request for discharge on 21 March 
1979, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by 
court-martial, and directed that the applicant be reduced to the lowest enlisted grade 
and discharged UOTHC.

10.  The applicant was discharged on 30 March 1979.  The DD Form 214 he was issued 
shows he was discharged under the provisions of Army Regulation 635-200,  
Chapter 10, for the good of the service, and his service characterization was UOTHC.  
His DD Form 214 further shows he was discharged in the rank/grade of private/E-1.

11.  The applicant was charged with the commission of an offense punishable under the 
UCMJ with a punitive discharge.  Subsequent to being charged, he consulted with 
counsel and requested discharge under the provisions of Army Regulation 635-200, 
chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial by 
court-martial.

12.  Contrary to his indication on his application, the applicant's record contains no 
evidence that shows he was considered for or granted a general discharge.

13.  The Board should consider the applicant's statement and overall record in 
accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient 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 and found insufficient evidence of error, 
injustice, or inequity; the applicant had no wartime service and insufficient evidence of 
mitigating circumstances for the misconduct.  Neither did the Board find sufficient 
evidence of post-service honorable conduct that might have mitigated the misconduct 
that resulted in the discharge characterization. The Board agreed that the applicant’s 
discharge characterization is appropriate.?
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.

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 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 regulation provides that the ABCMR begins its consideration of each case with the 
presumption of administrative regularity.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.

3.  Army Regulation 635?200 sets forth the basic authority for the separation of enlisted 
personnel.  

   a.  Paragraph 3?7a provides that 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.  Paragraph 3?7b provides that 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. 
A characterization of under honorable conditions may be issued only when the reason 
for the Soldier’s separation specifically allows such characterization.

   c.  Paragraph 3–8 (Limitations on characterization) states the characterization of 
service will be determined solely by the Soldier’s military record during the current 
enlistment or period of service to which the separation pertains.  Prior service activities 
including, but not limited to, records of convictions by courts-martial, records of 
nonjudicial punishment, records of absence without leave, or commission of other 
offenses for which punishment was not imposed will not be considered in determining 
the characterization of service.

   d.  Chapter 10 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, a discharge UOTHC is normally considered appropriate.

4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency 
generally refers to relief specifically granted from a criminal sentence.  Boards for 
Correction of Military/Naval Records may grant clemency regardless of the court-martial 
forum.  However, the guidance applies to more than clemency from a sentencing in a 
court-martial; it also applies to any other corrections, including changes in a discharge, 
which may be warranted on equity or relief from injustice grounds.  

   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, Boards 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//

ABCMR Record of Proceedings (cont)	 AR20190006432
	
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