ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  2 July 2020DOCKET NUMBER:  AR20190015644 


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 26 October 2019



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states he had honorable service from 10 March 1987 through19 March 1993.  He was honorably discharged when he reenlisted on 21 January 1990.He sent a lengthy statement in 1993 for review but never heard anything back.

3.The applicant enlisted in the Regular Army on 13 October 1983.  He was honorablyreleased from active duty (REFRAD) on 12 October 1986, after serving three years ofactive service.  He was issued a DD Form 214 (Certificate of Release or Discharge fromActive Duty) for this period that shows he was awarded the Army Good Conduct Medaland confirms his service was characterized as honorable.

4.The applicant reenlisted in the Regular Army on 10 March 1987.

5.The applicant accepted non-judicial punishment on 28 May 1987, under theprovisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for withoutauthority, failing to go at the time prescribed to his appointed place of duty, on or about18 May 1987.

6.The applicant reenlisted in the Regular Army on 22 January 1990.


7.Court-martial charges were preferred against the applicant on 23 November 1992 forviolations of the UCMJ.  The relevant DD Form 458 (Charge Sheet) shows he wascharged with being absent without leave (AWOL), from on or about 20 August 1992through on or about 18 November 1992.

8.The applicant consulted with counsel on 23 November 1992.

a.He was advised of the basis for the contemplated trial by court-martial, themaximum 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 requesteddischarge 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.He elected to submit a statement in his own behalf, wherein he stated, in effect: 

(1)On or about 16 August 1992, he contacted his unit (Bravo Company, 44thEngineer Battalion) to request an extension of his leave.  He wanted to obtain paperwork from his mother’s doctor and start the process for his divorce from his wife.  His first sergeant informed him that he would get his request to the commander and he should call back in 24 hours for an answer.  He misplaced the number and was unable to call and knew he would be in trouble.  He was having strong thoughts and it was on his heart to see his mother.  He knew he was AWOL so he headed to Fort Bragg, NC to see about getting a compassionate reassignment.  He went to his mom's house and saw the condition she was in; he knew as the only son, he needed to be there for her.   

(2)He knew there was no excuse for his actions and he knew he was wrong.He apologized for his actions and wished he could go back in time and change things, as he was a very good Soldier.  He’d requested a general, under honorable conditions discharge, not only for him but for benefits for his family.  He was sorry and he knew God would take care of him and his future. 




9.The separation authority approved the applicant's request for discharge on29 January 1993, under the provisions of Army Regulation 635-200, Chapter 10, in lieuof trial by court-martial, and further directed his reduction to the lowest enlisted gradeand the issuance of a DD Form 794A (UOTHC Discharge Certificate).

10.The applicant was discharged on 19 March 1993, under the provisions of ArmyRegulation 635-200, Chapter 10, in lieu of trial by court-martial.  His DD Form 214confirms he was discharged in the lowest enlisted grade and his service wascharacterized as UOTHC.

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

12.The applicant petitioned the Army Discharge Review Board (ADRB) for an upgradeof his service characterization.  The ADRB considered his request, determined he wasproperly discharged, and denied his request for relief.

13.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination 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 and the reason for his separation.The Board found insufficient evidence of in-service mitigation for the misconduct andthe applicant provided no evidence of post-service achievements or letters of referencein support of a clemency determination.  Based on a preponderance of evidence, theBoard determined that the character of service the applicant received upon separationwas 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:XXXDENY 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.


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): 

Not Applicable 

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 ABCMR to excuse an applicant's failure to timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 635-200, in effect at the time, set forth the basic authority for theseparation of enlisted personnel.

a.Paragraph 3-7a provides that an honorable discharge is a separation with honorand 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 Armyunder honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c.Chapter 10 of that regulation provides, in pertinent part, that a member who hascommitted 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 under other than honorable conditions is normally considered appropriate. 

3.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemencygenerally refers to relief specifically granted from a criminal sentence.  Boards forCorrection of Military/Naval Records may grant clemency regardless of the court-martialforum.  However, the guidance applies to more than clemency from a sentencing in acourt-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 andprinciples 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 ofservice 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 
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