IN THE CASE OF:  BOARD DATE:  11 June 2020 DOCKET NUMBER:  AR20190012793 


APPLICANT REQUESTS:  The applicant requests an upgrade of his general under honorable conditions discharge to an honorable.   

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 











•DD Form 149 (Application for Correction of Military Record)•DD Form 214 (Report of Separation from Active Duty), with separation date 26 April 1978•DD Form 214 (Certificate of Release or Discharge from Active Duty) with separation date 20 August 1982 and general under honorable conditions discharge•U.S. Congressman L_, First District, Connecticut, Information Release Form•Congress of the U.S., House of Representatives, Washington, DC, letter to the Army Review Boards Agency (ARBA), dated 1 October 2019•Ms. H_ Congressional Veteran Affairs and Service Academy District Aide, Electronic Message, dated 1 October 2019 



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 accepted responsibility for what he did and suffered theconsequences.  He served his country honorably and he would like to be able to holdhis head up.  If he could take back what he did, he would.  The punishment was harshbut, at the time, he thought it was wise to accept it.

3.On 21 June 1972, the applicant enlisted in the Regular Army for a term of 3 years.He reenlisted on 22 May 1974 and again on 27 April 1978 for a term of 6 years.

4.His record contains five enlisted evaluation reports during the period of 1978-1982and from the rank/grade of Specialist Five (SP5)/E-5 to Sergeant (SGT)/E-5, whichshow he served in the role as a squad leader and was viewed as an outstanding
performer and a leader.  He was a professional Soldier who inspired other Soldiers to do their very best.  He was highly respected by his supervisors, peers, and subordinates.  He earned a lateral appointment from SP5 to SGT/E-5 and eventually was recommended for promotion to Staff Sergeant (SSG)/E-6.  Due to his outstanding performance, he was recommended to attend higher noncommissioned officer education and to serve as an advance individual training instructor.  He was commended for being tactically and technically proficient in his duties, especially maintaining the unit vehicles, improving operational readiness. 

5.On 25 August 1980, he attended the E-6 promotion board, scoring 234.75 points outof a possible 250 points.  He was recommended for promotion to SSG/E-6.

6.On 15 June 1982, he accepted nonjudicial punishment (NJP) for failing to go at thetime prescribed to the motor pool.  His punishment was reduction the Specialist(SPC)/E-4, suspended for 90 days.

7.On 16 June 1982, his favorable actions were suspended due to an investigation forviolation of Article 107, Uniform Code of Military Justice (UCMJ), Falsifying an officialdocument, clearing papers.  He was not to leave the command until the final report ofinvestigation was completed.

8.On 25 June 1982, the applicant's status changed from present from duty to absentwithout leave (AWOL).  On 8 July 1982, he returned to military control and was placedin military confinement.

9.The record is void of the applicant's DD Form 458 (Charge Sheet), his request underArmy Regulation (AR) 635-200, Chapter 10 (Discharge for the Good of the Service), orchain of command recommendations.

10.On 27 July 1982, the appropriate authority approved his request for separation anddirected he be reduced to the grade of Private E-1 and he be issued an under otherthan honorable conditions discharge certificate.

11.The applicant was not required to undergo a medical examination and signed astatement of option stating that he did not desire a separation medical examination.

12.On 20 August 1982, he was discharged under AR 635-200, Chapter 10, foradministrative discharge conduct triable by court-martial.  His service was characterizedas UOTHC.  He completed 4 years, 3 months, and 12 days of net active service thisperiod, with 14 days lost due to being AWOL.  He completed 5 years, 10 months, and6 days total prior active service.  He was awarded or authorized:

.National Defense Service Medal


.Drivers Badge

.Drivers Mechanic Badge

.Good Conduct Medal

.M16 Rifle Expert Marksmanship Qualification Badge

.Army Service Ribbon

.Noncommissioned Officer Professional Development Ribbon

.Overseas Service Ribbon







13.On 14 June 2001, the ABCMR granted his petition to upgrade his discharge.  The Board stated while the applicant's acts of misconduct were not condoned by the Board, the under other than honorable conditions discharge appears to be unduly harsh considering that the applicant had 10 years of satisfactory service prior to his AWOL and had been recommended for promotion to the pay grade of E-6.  Based on the foregoing, the Board determined that his UOTHC discharge at the time was too harsh and recommended that his discharge be upgraded to a general discharge with an effective date of 20 August 1982.  On 17 July 2001, his characterization was upgraded to a under honorable conditions (General) as reflected on his reissued DD Form 214.14.The applicant provides:a.U.S. Congressman L_, First District, Connecticut, Information Release Form 





which shows the applicant authorized the Congressman’s office to make inquiries regarding his request to the Army Review Boards Agency (ARBA) to upgrade his general discharge to an honorable discharge. b. Congress of the U.S., House of Representatives, Washington, DC, letter to the ARBA, dated 1 October 2019, states , in pertinent part, he is reaching out on behalf of their constituent U.S. Army veteran, the applicant, requested the congressional offices assistance regarding his request for a discharge upgrade from a General Under Honorable Conditions to Honorable.  Per the veteran "he served his country honorably and would like to be confident and proud knowing he did his best and has accepted full responsibility for his shortcomings.  Although [it is] too late if given a chance [he would] undo what was done." c. Ms. H_ Congressional Veteran Affairs and Service Academy District Aide, Electronic Message, dated 1 October 2019, shows the Congressional Inquiry, Release of Information Form, the applicant’s military documents, and DD Form 149, was forwarded to U.S. Army Pentagon, Headquarters Department of the Army, Office of the Chief Legislative Liaison Mailbox Congressional Inquiries. 15. The applicant states he accepted responsibility for what he did and suffered the consequences.  He served his country honorably and he would like to be able to hold
his head up.  If he could take back what he did, he would.  The punishment was harsh but, at the time, he thought it was wise to accept it: 

a.His record shows he enlisted in the Regular Army and reenlisted on twooccasions; he accepted one NJP, he was pending investigation for falsifying clearing papers (outcome unknown), and he had 14 days lost due to being AWOL.  He was discharged under an approved Chapter 10; however, the charge sheet is not available, which would provide information as to what charges were preferred against him.  He completed 4 years, 3 months, and 12 days of his 6-year contractual obligation. 

b.AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trialby court martial is a voluntary discharge, which members who committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice and the Manual for Courts-Martial (MCM), United States, 1969 (Revised Edition) included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate.   

(1)The record shows the applicant's favorable actions were suspended for aninvestigation initiated against him for falsifying an official document under Article 107, UCMJ and he was AWOL for 14 days.  The record is void of the charge sheet and his request for Chapter 10, discharge for the good of the service; therefore, we cannot determine what charges were preferred against the applicant.   

(2)Per the MCM 1969 (Revised Edition), Article 86 – Absence Without Leavefor more than 3 days but less than 30 days did not include a punitive discharge; the maximum punishment was confinement for 6 months and forfeiture of pay for 6 months. Article 107 – Signing any false record, return, regulation, order, or other official document included a dishonorable discharge. 

(3)Paragraph 5-3 states the separation of enlisted personnel is the prerogativeof the Secretary of the Army and will be effected only by his authority.  The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. 

16.In reaching its determination, the Board can consider the applicant's petition and hisservice record in light of the published DOD 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 of service, the frequency and nature of his misconduct, his reduction in grade, the absence of details regarding the falsified document or a charge sheet and the reason for his separation.  The Board considered the previous ABMCR decision, the applicant’s overall record of service, his stated remorse and the post-service letters he provided.  Based on a preponderance of evidence, the Board determined that an upgrade of his character of service was warranted as a matter of clemency.  The Board concurs with the corrections stated in the Administrative Note(s) below. 

2.After reviewing the application and all supporting documents, the Board found thatrelief was warranted.

BOARD VOTE:

Mbr 1 Mbr 2 Mbr 3 

:XX :XXX GRANT FULL RELIEF 

: : GRANT PARTIAL RELIEF 

:XXX: : : : 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, in addition to the corrections stated in the Administrative Note(s) below, 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 20 August 1982 to reflect in item 24 (Character of Service) – “Honorable” vice “under honorable conditions (General)’”. 



X 


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): 

A review of the applicant's record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 20 August 1982, is missing important entries that affect his eligibility for post-service benefits.  As a result, amend the DD Form 214, item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) by: 

.Deleting Good Conduct Medal

.Adding:



.Good Conduct Medal (2nd Award)

.Korea Defense Service Medal









REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so.

2.Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), ineffect at the time, set forth the basic authority for the administrative separation ofenlisted personnel.

a.An honorable discharge was a separation with honor and entitled the recipient tobenefits provided by law.  The honorable characterization will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.   

b.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. 

c.When a member is to be issued a discharge under other than honorableconditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. 

d.A Chapter 10 (Discharge for the Good of the Service) is a voluntary discharge,which members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice and the Manual for Courts-Martial (MCM), United States, 1969 (Revised Edition) 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.  Per Manual for Courts-Martial, United States, 1969 (Revised Edition), Article 86 – Absence Without Leave for more than 3 days but less than 30 days did not include a punitive discharge; the maximum punishment was confinement for 6 months and forfeiture of pay for 6 months.  Article 107 – Signing any false record, return, regulation, order, or other official document included a dishonorable discharge. 

e.Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel isthe prerogative of the Secretary of the Army and will be effected only by his authority. 
Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders.   
 
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//