IN THE CASE OF:  
 
  BOARD DATE: 29 August 2023 
 
  DOCKET NUMBER: AR20230005697 
 
 
APPLICANT REQUESTS:  an upgrade of his characterization of service from under other than honorable conditions to honorable. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record) 
 
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, he was given an under other than honorable conditions discharge due to circumstances that were not his fault. He was told to remain at home and wait for further notice because the Army found a spot on his lungs. After six months the Army sent the military police to pick him up and charged him with being absent without leave (AWOL). He met with a Judge Advocate General Officer (JAG) at Fort Ord. He said if he wanted to leave the Army immediately then sign some documents and he would be out. The JAG officer did not share with him that he would receive an under other than honorable conditions discharge. He states, he should have his discharge changed to honorable because he followed the orders that he was given.  
 
3.  A review of the applicant’s service record shows: 
 
 a.  He enlisted in the Regular Army on 31 October 1984.  
 
 b.  Orders Number 43-244, issued by the U.S. Army Training Center Engineer and Fort Leonard Wood, MO, dated 12 February 1985, show he was to proceed on permanent change of station (PCS) with temporary duty (TDY) enroute for the purpose of participating in the Hometown Recruiter Assistance Program. The orders assigned him to the 21st Adjutant General Replacement Detachment, APO New York (Germany), with TDY at the Antioch Recruiting Station, Antioch, CA. His report date to the recruiting station was 22 February 1985, for a period of 45 days.  
c.  A letter of termination which states effective 6 March 1985, the applicant’s services as a recruiter aide with the Antioch Recruiting Station were no longer required. His reporting date was adjusted to 10 March 1985.  
 
d.  Orders Number 43-244 were amended on 12 February 1985 to show the applicant’s temporary duty at the U.S. Army Recruiting Battalion was terminated and his new reporting date was in accordance with new port call, St Louis on 10 March 1985, flight US41. 
 
e.  An AWOL/DFR action dated 3 July 1986, which states the applicant was more than 90 days past his reporting date to the 21st Replacement Battalion and the Chief, Personnel Management Services Division requested action be initiated to drop the applicant from the rolls of the Army.  
 
f.  A statement from a sergeant first class (SFC) from the Antioch Army Recruiting Station, which states the applicant was assigned to the station on 22 February 1985 as a hometown recruiter. Due to the applicant’s ineffectiveness, he was relieved from the recruiting command on 6 March 1985 and was to report for duty in Germany on 10 March 1985. On 8 March 1985, the applicant became ill with a terrible cough and was advised to report to the Concord Naval Hospital for treatment. The applicant was treated on 8 March 1985 and the applicant told the SFC that the doctor informed him that he had bronchitis and would not be able to go to Germany on 10 March 1985. Doctors later stated that the applicant had bronchial asthma and would have to be discharged. The SFC stated he was not sure what happened after that. He informed his supervisor of the situation with the applicant. The SFC stated that the applicant notified the battalion. He states that he lost contact with the applicant but as much as he could remember, the applicant was under the assumption that he had been medically discharged and that the Navy had provided the documentation.  
 
g.  Court-martial charges were preferred against the applicant on 7 January 1987. His DD Form 458 (Charge Sheet) shows he was charged with: 
 
• Charge I, one specification of on or about 10 March 1985, through neglect, missing movement of flight US41 with which he was required in the course of duty to move.  

• Charge II, one specification of being AWOL from on or about 11 March 1985 to on or about 9 December 1986.  


 
h.  On 7 January 1987, after consulting with legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. The applicant acknowledged that he made the request of his own free will and was 
not coerced by any person. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further understood, he could be deprived of many or all Army benefits, he could be ineligible for many, or all benefits administered by the Veteran’s Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State law and encounter substantial prejudice in civilian life because of an under other than honorable discharge. 
 
i.  Reconstructed DA Forms 4187 (Personnel Action), dated 11 December 1986 and 26 January 1987, which were based upon the best available evidence, show the applicant’s duty status changed on the following dates: 
 
• Intransit-In to Assigned not Joined – 10 March 1985 

• Assigned not Joined to AWOL – 11 March 1985 

• AWOL to Dropped from Rolls (DFR) – 10 April 1985 

• DFR to Returned to Military Control – 9 December 1986 

• Returned to Military Control to Present for Duty (PDY) – 9 December 1986 


 
j.  The separation authority approved the discharge on 7 May 1987 and directed the applicant be issued an under other than honorable conditions discharge. 
 
 k.  The applicant was discharged on 27 October 1987. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, in the rank/grade of private/E-1, and his service was characterized as under other than honorable conditions. He completed 1 year, 2 months, and 29 days of net active service during the covered period and had lost time from 11 March 1985 to 8 December 1986. It also shows he was awarded or authorized the Army Service Ribbon. 
 
4.  There is no indication the applicant applied to the Army Discharge Review Board to request an upgrade of his characterization of service within the 15-year Statute of Limitations.  
 
5.  The pertinent Army regulation in effect at the time provided discharges under the provision of Army Regulation 635-200, chapter 10, where voluntary requests from the Soldier to be discharged in lieu of a trial by court-martial. 
 
6.  In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 
 
7.  Based on the applicant’s condition(s)/contention(s) the Army Review Boards Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 
 
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. 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. After 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 and carry an under other than honorable conditions characterization of service. 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. 
 
  8/29/2023

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 (AR) 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  
 
 a.  Chapter 10 provided that a member who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. Commanders will ensure that a member is not coerced into submitting a request for discharge for the good of the service. The member is given reasonable time to consult with a consulting counsel and to consider the wisdom of submitting such a request for discharge. After receiving counseling, the member may elect to submit a request for discharge for the good of the service. The member will sign a written request, certifying that they were counseled, understood their rights, may receive a discharge under other than honorable conditions, and understood the adverse nature of such a discharge and the possible consequences. A discharge under other than honorable conditions was normally appropriate for a member who is discharged for the good of the service. However, the separation authority was authorized to direct a general discharge certificate if such was merited by the member's overall record during their current enlistment. For members who had completed entry level status, characterization of service as honorable was not authorized unless the member's record was otherwise so meritorious that any other characterization clearly would be improper. 
 
 b.  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. 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.  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. The recipient of a general discharge is normally a member whose military record and performance is satisfactory.  
 
 d.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct or for the good of the service. 
 
3.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 
 
4.  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 regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority.  
 
 a.  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 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. 
 
5.  Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory 
opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 
 
//NOTHING FOLLOWS//