IN THE CASE OF:  BOARD DATE:  29 September 2020 DOCKET NUMBER:  AR20200001837 


APPLICANT REQUESTS:  The applicant requests, in effect, reconsideration to upgrade his under other than honorable conditions discharge.    

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)

.Statement in Support Claim



FACTS: 

1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20130013900 on 16 April 2014.

2.The applicant states:

a.He was already on the list for an early out and was looking forward to making ithome for Christmas when orders came down telling him he was not going home for Christmas.  He went to his commanding officer and asked for leave.  His commanding officer told him he had to apply for leave 30 days in advance.  The applicant said why would he have to apply for leave when he was already on the list for early out?  He went home to Mississippi anyway.  He called post and his commanding officer to tell him where he was and he [the commander] told him not to go anywhere, and he would have someone come get him.  

b.After 1 January he assumed he was not going to send someone for him, so hecaught a ride back to Fort Hood, TX from Biloxi, MS.  When he got there he was told that he was not a member of that Post any longer.  They did not know what to do with him and he did not know what to do.  He was told by sergeant T, chief warrant officer D, and staff sergeant S to just be where he was supposed to be, so he did what his unit did.  He did physical training with his section.  He was there doing all that for about a month.  He was then called to the front by the first sergeant and the military police took him to the stockade for several weeks until he was contacted by a Judge Advocate General Officer (captain S).  Captain S told him that he would have to reenlist with a 
bonus or get court-martialed.  He got a civilian lawyer and was told he would get a medical discharge.  All he wants is a General or Under Honorable Conditions discharge so he can get healthcare.   

c.He was young.  He did not know what his superiors’ decisions meant to him untilit was too late.  He is in need of health care without many other options.  He wants to be able to go to the Department of Veterans Affairs for health care.    

3.On 14 August 1986, the applicant enlisted in the Regular Army.  He was 19 years oldwhen he enlisted in the Regular Army.  He completed training requirements and wasawarded his military occupational specialty.

4.On 8 November 1988, a medical examination and mental status evaluation clearedthe applicant for chapter 5 (Separation for Convenience of the Government)administrative separation.

5.His record contained Personnel Action forms that show his duty status as follows:

.19 December 1988, present for duty to absent without leave (AWOL)

.24 February 1989, AWOL to present for duty

.28 February 1989, present for duty to AWOL

.5 March 1989, AWOL to present for duty



6.On 7 March 1989, the applicant was placed in pre-trial confinement due to being aflight risk.

7.On 7 March 1989, court-martial charges were preferred against the applicant forviolating the Uniform Code of Military Justice (UCMJ).  In pertinent part, the chargesheet shows he was charged for:

.missing a movement on or about 19 December 1988

.being AWOL on or about 28 February 1989 until on or about 5 March


1989

8.On 9 March 1989, the applicant consulted with legal counsel who advised him of thebasis for the contemplated trial by court-martial for an offense punishable by a badconduct discharge or a dishonorable discharge, the maximum permissible punishmentauthorized under the UCMJ, the possible effects of a request for discharge, and of theprocedures and rights that were available to him.  Following consultation with legalcounsel, he voluntarily requested discharge for the good of the service in lieu of trial bycourt-martial in accordance with chapter 10 of Army Regulation (AR) 635-200(Personnel Separations - Enlisted Personnel).  In his request for discharge, theapplicant admitted guilt to missing movement.

a.He elected not to submit statements in his own behalf.

b.His chain of command recommended approval of his request to be discharged.

c.On 14 March 1989, court-martial charges were preferred against the applicant forbeing AWOL from on or about 19 December 1988 to 24 February 1989.  

d.The separation authority approved his request for discharge under other thanhonorable conditions and directed his reduction to private/E-1. 

9.On 28 March 1989, the applicant was discharged as directed.  His DD Form 214shows he was discharged under the provisions of chapter 10, AR 635-200, under otherthan honorable conditions for the good of the service in-lieu of court-martial.  Hecompleted 2 years, 5 months, and 3 days of net active service with lost time during thisperiod from 19 December 1988 to 23 February 1989 and 28 February to 4 March 1989.The applicant was not awarded a personal decoration.

10.On 16 April 2014, the ABCMR denied the applicant’s request for an upgrade of hisdischarge.

11.Army Regulation 15–185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy, acting through the Army Board for Correction of Military Records (ABCMR).  Inpertinent part, it states that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The ABCMR will decide cases based on theevidence of record.  It is not an investigative agency.

12.Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forththe basic authority for the separation of enlisted personnel.  Chapter 10 provides that amember who has committed an offense or offenses for which the authorizedpunishment includes a punitive discharge may submit a request for discharge for thegood of the service in lieu of trial by court-martial.  The request may be submitted at anytime after charges have been preferred and must include the individual's admission ofguilt.  Although an honorable or general discharge is authorized, an under other thanhonorable conditions discharge is normally considered appropriate.  In pertinent part,the regulation also states:

a.The type of discharge and character of service will be determined solely by themilitary record during the current enlistment or period of service, plus any extensions thereof from which the Soldier is being separated. 
b.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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. 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. 13.The ABCMR is not authorized to grant requests for upgrade of discharges solely forthe purpose of making the applicant eligible for veterans' benefits; however, in reachingits determination, the Board can consider the applicant's petition, service record, andstatements in light of the published guidance on equity, injustice, or clemency.BOARD DISCUSSION: 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 did not find sufficient evidence to amend the decision of the ABCMR set forth in Docket Number AR20130013900 on 16 April 2014.  The Board found insufficient evidence of error, injustice, or inequity; the applicant did not complete a full enlistment, had no wartime service, no meritorious personal awards and insufficient evidence of mitigating circumstances for the misconduct. The Board found limited evidence of remorse or post-service honorable conduct that might have mitigated the discharge characterization that resulted from his serious misconduct or evidence to support a clemency determination.  Based on a preponderance of evidence, the Board agreedthat the applicant’s discharge characterization as reflected on his DD Form 214 is not in error or unjust.BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :XX :XX DENY APPLICATION 




The Board determined the evidence presented is insufficient to warrant amendment of the ABCMR's decision in Docket Number AR20130013900 on 16 April 2014.  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 CHAIRPERSON


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.Army Regulation 15–185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy, acting through the Army Board for Correction of Military Records (ABCMR).  Inpertinent part, it states that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.  The ABCMR will decide casesbased on the evidence of record.  It is not an investigative agency.

2.Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forththe basic authority for the separation of enlisted personnel.  Chapter 10 provides that amember who has committed an offense or offenses for which the authorizedpunishment includes a punitive discharge may submit a request for discharge for thegood of the service in lieu of trial by court-martial.  The request may be submitted at anytime after charges have been preferred and must include the individual's admission ofguilt.  Although an honorable or general discharge is authorized, an under other thanhonorable conditions discharge is normally considered appropriate.  In pertinent part,the regulation also states:

a.The type of discharge and character of service will be determined solely by themilitary record during the current enlistment or period of service, plus any extensions thereof from which the Soldier is being separated. 

 b.  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. 
 
 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 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//