IN THE CASE OF:  
 
  BOARD DATE: 9 January 2024 
 
  DOCKET NUMBER: AR20230006892 
 
 
APPLICANT REQUESTS:   in effect, upgrade to his under other than honorable conditions discharge to an honorable discharge.  
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States  
 
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 he is looking to see if he qualifies for benefits.  
 
3.  Review of the applicant’s service records shows:  
 
 a.  He enlisted in the Regular Army on 27 September 1978. He held military occupational specialty 36H, Track Vehicle Repairer.   
 
 b.  He served in Germany from February 199 to January 1981, January 1984 to January 1987, and January 1990 to June 1991. He reenlisted on 29 March 1982 and on 18 December 1986.  
 
 c.  A DD Form 458 (Charge Sheet) is not available for review. However, other evidence show court martial charges were preferred against the applicant for violating the Uniform Code of Military Justice (UCMJ). A statement from his defense counsel sates the applicant’s record as exemplary until he had a problem with worthless checks. Since the checks were written, he has done everything to make amends to his actions. He has made full restitution, fully admitted his guilt to law enforcement authorities, and has waived an Article 32 investigation.  
 
 d.  On 7 May 1991, after being informed of his rights, the applicant signed a Waiver of Pre-trial Investigation. Also on the same date, the applicant consulted with counsel and was advised of the contemplated trial by court-martial for an offense (worthless checks) punishable by a bad conduct or a dishonorable discharge. Following this consult, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged the following: 
 
  (1)  He was making this request of his own free will and have not been subjected to any coercion whatsoever by any person; he has been advised of the implications that are attached to it. 
 
  (2)  He understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate. 
 
  (3)  He understood that, if my request for discharge is accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate. 
 
  (4) He unacknowledged he had been advised and understood the possible effects of an Under Other Than Honorable Discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also understood that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge. 
 
  (5)  He elected to submit a statement (not available in the service record) 
 
 e.  The applicant’s chain of command at the company, battalion, and brigade levels recommended approval of the discharge request under chapter 10 with issuance of an under other than honorable conditions discharge.  
 
 f.  On 28 May 1991, following a legal review for legal sufficiency and consistent with the chain of command’s recommendations, the separation authority approved the applicant’s request for discharge and ordered hm discharge under other than honorable conditions s and reduced to the grade of private/E-1.  
 
 g.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from active duty on 1 July 1991 under the provisions of AR 635-200, 
chapter 10 (in lieu of trial by a court-martial) in the rank of private/E-1, with an under other than honorable conditions characterization of service (Separation Code KFS and Reentry Code 3). He completed 12 years, 9 months, and 5 days of active service.  
 
  (1)  He was awarded or authorized: Army Service Ribbon, National Defense Service Medal, Army Commendation Medal, Good Conduct Medal (4th Award), Overseas Service Ribbon with numeral 2, Air Assault Badge, Driver and Mechanic Badge, Marksman Marksmanship Badge with M-16 Bar, and Expert Marksmanship Badge with Grenade Bar.  
 
  (2)  The Remarks Block listed his immediate reenlistments but did not indicate whether he completed his first term of service and did not list his continuous honorable service.  
 
 h.  There is no evidence the applicant applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 
 
4.  By regulation, AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed 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. 
 
BOARD DISCUSSION: 
 
After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially 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 and record of service, the frequency and nature of the applicant's misconduct and the reason for separation. 
 
 a.  The evidence shows the applicant was charged with commission of an offense or offenses 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 and under other than honorable conditions discharge. He willingly and in writing requested to be discharged in lieu of trial by court-martial. The Board found no error or injustice in his separation processing or character of service. The applicant provided no evidence of post-service achievements or letters of reference of a persuasive nature in support of a clemency determination. However, given the applicant’s length of service (12 years and 9 months) and the time that elapsed since his discharge, the Board determined that his service did not rise to the level required for 
an honorable discharge; however, an under honorable conditions (general) characterization of service is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. The Board further determined no change to the reason for separation and/or associated separation and RE codes.  
 
 b.  The Board also noted that the applicant’s service from first date of enlistment to the date before his last reenlistment was honorable. For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, in addition to listing immediate reenlistment(s), an entry is required for continuous honorable service from first day of service for which DD Form 214 was not issued until date before commencement of current enlistment.  
 
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
:xx :xx :xx GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
: : : DENY APPLICATION 
 
 
BOARD DETERMINATION/RECOMMENDATION: 
 
1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant’s reissuing the applicant a DD Form 214 for the period ending 1 July 1991 showing: 
 
• Character of Service: General, Under Honorable Conditions 

• Separation Authority: No Change 

• Separation Code: No Change 

• Reentry Code: No Change 

• Narrative Reason for Separation: No Change 

• Remarks: Add: “Member Completed First Full Term of Service” and “Continuous Honorable Service 1978-09-27 to 1986-12-17” 
 
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to honorable. 
 
  1/9/2024

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 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed 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. 
 
 a.  Paragraph 3-7a states that 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. 
 
 b.  Paragraph 3-7b states that 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.  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. 
 
3.  AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214.  It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 
 
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