IN THE CASE OF:  
 
  BOARD DATE: 8 August 2023 
 
  DOCKET NUMBER: AR20230004754 
 
 
APPLICANT REQUESTS: an upgrade of his character of service from under other than honorable conditions to under honorable conditions (general). 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record), 11 February 2023 

• DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), 11 February 2023 

• DD Form 214 (Certificate of Release or Discharge from Active Duty), 10 May 1988 


 
FACTS: 
 
1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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, in effect, prior to his receipt of an under other than honorable conditions characterization of service on 10 May 1988, his record shows he served majority of his service honorably, which warrants an upgrade of his characterization. He would like to receive benefits from the U.S. Department of Veterans Affairs (VA) because he suffered medical injuries while serving on Active Duty. 
 
3.  The applicant enlisted in the Regular Army on 31 October 1986, and he executed an DA Form 1695 (Oath of Extension of Enlistment) on 22 January 1988. He held military occupational specialty 13B, Cannon Crewmember. 
 
4.  His DA Form 2-1 (Personnel Qualification Record), shows the applicant was promoted to the rank/grade of private first class (PFC)/E-3 with a date of rank of 1 September 1987. He served in Panama from 23 February 1987 to on or about 10 May 1988. 
 
5.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions (FLAG)), shows the applicant's immediate commander initiated a flag against him on 6 April 1988; because he was pending court-martial action. 
 
6.  The applicant’s DD Form 458, Charge Sheet, is not available for review. The exact court-martial charges or violations are unknown.  
 
7.  On 13 April 1988, after consulting with counsel, the applicant executed a written request for discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 10. He acknowledged understanding the following in his request: 
 
 a.  He understood that he could request discharge for the good of the service because the charges preferred against him could result in the imposition of a punitive discharge. 
 
 b.  Prior to completing this request, he was afforded the opportunity to consult with appointed counsel, who fully advised him of the basis for his contemplated trial by court-martial, the maximum punishment authorized under the Uniform Code of Military Justice; of the possible effects of an under other than honorable conditions character of service, and of the procedures and rights available to him.  
 
  (1)  He was advised of the implications of requesting such discharge. He acknowledged he was guilty of the charge against him or of lesser included offenses which authorized the imposition of a bad discharge or dishonorable discharge.  
 
  (2)  Counsel further advised him of the maximum punishment he could receive if he were found guilty at a court-martial. He understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions. He was advised and understood the possible effects of an under other than honorable conditions discharge and that because of the issuance of such a discharge he would be deprived of many or all Army and VA benefits, and many rights and benefits as a veteran under both federal and state laws.  
 
  (3)  He also understood he could expect prejudice in civilian life if he received an under other than honorable conditions discharge. 
 
 c.  He acknowledged that he was making this request of his own free will and had not been subjected to any coercion by any person. Although counsel furnished him legal advice, this decision was his own. Additionally, he elected not to submit a statement on his own behalf. 
 
8.  The recommendations from the applicant's immediate and intermediate commanders are not available for review, however, on 21 April 1988, the Judge Advocate Trial Counsel states the applicant's commanders recommended approval of the applicant's separation with an under other than honorable discharge.  
 
9.  On 21 April 1988, the separation approval authority approved the applicants request for discharge under the provision of AR 635-200, chapter 10 with an under other than honorable condition character of service and directed the applicant immediate reduction to the lowest enlisted rank/grade of private (PV1)/E-1. 
 
10.  The applicant was discharged on 10 May 1988. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10 (For the Good of the Service in Lieu of Trial by Court-Martial) in the rank/grade of PV1/E-1 with an under other than honorable condition character of service. He received a separation code of "KFS" and a reentry code of "3,3C". He completed 1 year, 6 months, and 10 days of net active service. His DD Form 214 did not reflect any personal decorations. 
 
11.  There is no indication the applicant applied to the Army Discharge Review Board within that Boards 15-year Statute of limitations. 
 
12.  Discharges under the provisions of AR 635-200, chapter 10 are voluntary requests for discharge for the good of the service, from the Soldier, to avoid a trial by court-martial. An under other than honorable conditions character of service is normally considered proper. 
 
13.  The applicant provided argument or evidence the Board should consider, along with the applicant's overall record, in accordance with the published equity, injustice, or clemency determination guidance. 
 
BOARD DISCUSSION: 
 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. Although the specific court-martial charges are unknown, the evidence shows the applicant was discharged under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial with an under other than honorable conditions characterization of service. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of a clemency 
determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was 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 
 
 
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. 
 
  8/8/2023

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, U.S. 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 ABCMR determines it would be in the interest of justice to do so. 
 
2.  Army Regulation 635-200, in effect at the time, provided guidance for the administrative separation of enlisted personnel: 
 
 a.  Chapter 10 of this regulation provided a member who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The discharge request may be submitted after court-martial charges are preferred against the member, or, until final action on the case by the court-martial convening authority. A member who is-under a suspended sentence of a punitive discharge may also submit a request for discharge for the good of the Service. An under other than honorable conditions discharge certificate normally is appropriate for a member who is discharged for the good of the Service. However, the separation authority may direct a general discharge certificate if such is merited by the member's overall record during the current enlistment.  
 
 b.  An honorable discharge is a separation with honor. The 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. Where a member has served faithfully and performed to the best of his ability, and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. 
 
 c.  An under honorable conditions (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. 
 
 d.  An under other than honorable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct and 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. 
 
 a.  This guidance does not mandate relief but 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//