IN THE CASE OF: BOARD DATE: 24 November 2020 DOCKET NUMBER: AR20200003021 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 he got married at a young age and lived off post with his spouse. He found out his wife was cheating on him and to save his marriage, went back to Pennsylvania with her. He should have listened to his heart and left her and stayed in the Army. He cannot believe he threw that away for a woman he divorced later. After the death of his eldest son, he could have used the Army. 3. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 20 June 1977 for 4 years. b. He served in Germany from 15 November 1977 to 7 November 1979. c. On 11 November 1980, he was reported in an absent without leave (AWOL) status. He returned on 12 November 1980. d. On 15 November 1980, he was again reported AWOL and on 13 December 1980, he was dropped from the rolls as a deserter. He ultimately returned to military control on 18 May 1984. e. On 25 May 1984, court-martial charges were preferred on the applicant for violating the Uniform Code of Military Justice (UCMJ). Specifically, the applicant was charged with two specifications of being AWOL from 11 November 1980 to 12 November 1980 and from 14 November 1980 to 18 May 1984. f. On 25 May 1984, after consulting with legal counsel , the applicant requested discharge for the good of the service under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), Chapter 10 for the charges preferred against him under the UCMJ, which authorize the imposition of a bad conduct or dishonorable discharge. He acknowledged: * he was guilty of one of more of the charges, or lesser included offenses * he did not desire further rehabilitation and had no desire to perform further military service * if his request was accepted, he may be discharged under conditions other than honorable * he would be deprived of many or all Army benefits, may be ineligible for many or all benefits administered by the VA, may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge g. On 5 June 1984, consistent with the chain of command recommendations, the separation approval authority approved the discharge and the applicant would be discharged under other than honorable conditions and reduced to the lowest enlisted pay grade. h. On 29 June 1984, the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 6 months, and 6 days of active service, with lost time from 14 November 1980 to 17 May 1984. It also shows he was awarded or authorized: * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Army Service Ribbon * Overseas Service Ribbon i. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 4. By regulation, an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. The applicant provided insufficient evidence of post-service achievements in support of a clemency determination. After reviewing the application and all supporting documents, the Board found that relief was not warranted based upon guidance for consideration of discharge upgrade requests. 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. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 (Discharge for the Good of the Service) states an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 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. 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 based on 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. 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) AR20200003021 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1