BOARD DATE: 8 October 2019 DOCKET NUMBER: AR20190010224 APPLICANT REQUESTS: The applicant requests an upgrade of his discharge to honorable, and to change his narrative reason for separation to “entry level separation”. 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) 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. Although it was a long time ago he did not think it was over 18 months. In fact, he thinks it was between a year and 18 months. At this juncture, he thinks he clearly qualified for an entry level separation. The main reason his discharge was inequitable was because it was based on the incident in the timeframe he was in the Army. Prior to this incident he was a squared away Soldier. b. While walking back to the barracks after a movie he was robbed by a guy with a knife. During this robbery, he managed to disarm the guy and beat him up. When he got back to the barracks he started to panic because he was only 19 years old. So, to cover himself, he shipped all of his stuff back to Baton Rouge. He jumped on a bus and said goodbye to his unit. He was doing well prior to this incident. c. He has never asked the military for anything in the form of benefits after he was discharged. All he wants is an upgrade of his discharge to honorable and a copy of his DD Form 214 for his personal archives. After he went absent without leave (AWOL) for 30 days, he turned himself in at Fort Polk, Louisiana. For the record he loved the Army and was planning to make the Army a career prior to being robbed. After being discharged, he went on to make a good life for him and his family. 3. On 20 October 1981, the applicant enlisted in the Regular Army for a period of 4 years. He completed training requirements and was awarded military occupational specialty 76Y (Unit Supply Specialist). 4. His service record shows on: * 7 September 1982, he was absent without leave * 7 October 1982, he was dropped from the Army’s rolls * 19 October 1982, he returned to military control 5. On 20 October 1982, the applicant did not desire a separation medical examination. 6. On 21 October 1982, court-martial charges were preferred against the applicant for being AWOL from on or about 7 September to 19 October 1982. 7. On 22 October 1982, 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). a. He consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, its effects, and of the procedures and rights available to him. He elected not to submit statements in his own behalf. b. His chain of command recommended approval of his discharge request with an Under Other Than Honorable Conditions Discharge Certificate. c. The separation authority approved the applicant’s request to be discharged for the good of the service and directed he be furnished an Under Other Than Honorable Conditions Discharge Certificate. 8. On 22 November 1982, the applicant was discharged accordingly. He completed 11 months and 22 days of net active service. He had lost time from 7 September to 18 October 1982. 9. The record contains no indication of procedural or other errors that would tend to have jeopardized the applicant’s rights. 10. Army Regulation 635-200, chapter 10 stated that, a. 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. For members who have completed entry level status, characterization of service as honorable is not authorized unless the member's record is otherwise so meritorious that any other characterization clearly would be improper. Entry level status was defined as the first 180 days of continuous active military service. 11. 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 of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the frequency and nature of his misconduct, court-martial charges and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome 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 of service and the narrative reason the applicant received upon separation were not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X 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 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated 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. For members who have completed entry level status, characterization of service as honorable is not authorized unless the member's record is otherwise so meritorious that any other characterization clearly would be improper. Entry level status was defined as the first 180 days of continuous active military service. c. 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. d. 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. e. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190010224 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190010224 5 ABCMR Record of Proceedings (cont) AR20190010224 4