ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20190008330 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * One recommendation letter * Two reference letters 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120022274 on 27 June 2013. The applicant requested an upgrade due to his immaturity and lacking sound judgment. The board determined the evidence did not demonstrate the existence of error or injustice and the overall merits of the case was insufficient as a basis for recommended relief. 3. The applicant states his discharge was inequitable because it was based on one isolated incident in 2 years, 7 months, and 9 days of service with only a couple of infractions for alcohol use and completely unrelated to going AWOL. He was threatened with a courts-martial if he did not accept the discharge. He was young and didn’t know the repercussions of either, so he chose the discharge. 4. On 16 September 1992, the applicant, at the age of 23, enlisted in the Regular Army for four years. 5. On 15 March 1995, he was charged with absenting himself without authority from on or about 4 February 1995 to on or about 14 March 1995. 6. On 21 March 1995, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He signed a request for discharge for the Good of the Service and indicated he would not submit statements in his own behalf. 7. On 11 May 1995, the applicant’s commander recommended trial by special bad conduct discharge (BCD) courts-martial. The Chief, Criminal Law Division reviewed the request for discharge and stated there are no legal obligations to further processing in accordance with the unit commander’s recommendation. 8. On 16 May 1995, the appropriate authority approved the applicant’s request for discharge in lieu of trial by courts-martial; he directed the applicant be furnished an UOTHC discharge. 9. On 2 June 1995, he was discharged accordingly; his DD Form 214 shows he completed 2 years, 7 months, and 9 days of his four year service obligation with approximately 39 days of lost time. He does not show he was awarded or authorized decorations, medals, badges, citations or campaign ribbons. 10. The applicant provides a letter or recommendation and two reference letters. He was noted as being an honest, hardworking, dependable. A leader on the job as well as the community. 11. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request 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 can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board considered the applicant’s request, supporting documents, evidence on the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for his misconduct. The Board considered the applicant provided a letter of recommendation and letters of reference, describing his post-service conduct, in support of a clemency determination. Based on a preponderance of evidence, the Board found that clemency was warranted and the applicant’s character of service should be upgraded. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 of service ending 2 June 1995 to show in item 24 (Character of Service) – “General Under Honorable Conditions”. 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 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 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 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. 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 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 ABCMR Record of Proceedings (cont) AR20190008330 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.