RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 September 2007 DOCKET NUMBER: AR20070003794 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Mr. John J. Wendland, Jr. Analyst The following members, a quorum, were present: Mr. Jeffrey C. Redmann Chairperson Mr. Dean A. Camarella Member Mr. Qawiy A. Sabree Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his under other than honorable conditions discharge be upgraded to an honorable discharge. He also requests copies of all documents that are in his records that have anything to do with him working for the U.S. Army (USA) Criminal Investigation Division (CID). 2. The applicant states, in effect, that while serving in Gelhausen, Germany he volunteered to do controlled drug buys for the CID for a period of about 1 year, which led to several successful arrests and resulted in him being moved to Karlsure, Germany. He also states, in effect, that he continued to work for the CID; however, the undercover drug operation was very dangerous and he became involved in a murder investigation. a. The applicant states that for his own protection he was reassigned from Germany to Fort Rucker, Alabama and, while stationed there, was asked to continue his undercover work for the CID. The applicant adds, in effect, that he worked for the CID at Fort Rucker for about 1 year and was involved in one of the biggest drug busts in the post’s history. He states that while the trials for the drug busts were pending, he was reassigned to Pensacola, Florida. He adds that he was brought back to Fort Rucker to be a witness in several drug trials and, after one of the trials, he received a death threat. The applicant states that “a man put a gun up to the back of [his] head telling [him] if he testified in the upcoming trial [he] would not live to see another day.” b. The applicant states, in effect, that he was in fear for his life and went absent without leave (AWOL). He states he went to his home in Mississippi and, after about 56 days, the Army located him and he was returned to Fort Rucker to testify in the other drug trials. c. The applicant concludes by stating, in effect, that he was a very good Soldier and never got in trouble. However, at the time he went AWOL, he felt that nobody could protect him and adds, in effect, that his unauthorized absence was an act of self-preservation. He appeals to this Board to grant him an honorable discharge. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 6 January 1982; Headquarters, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, Orders 168-4, dated 28 August 1981; 2 DD Forms 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States), dated 28 June 1978 and 27 August 1981; DA Form 2-1 (Personnel Qualification Record); 3 DA Forms 3349 (Medical Condition - Physical Profile Records), dated 28 September 1978, 6 October 1978, and 16 November 1978; Standard Form (SF) 93 (Report of Medical History), dated 28 June 1978; SF 88 (Report of Medical Examination), dated 28 June 1978; SF 601 (Immunization Record), dated 8 January 1981; and SF 603 (Dental Record), dated 2 February 1981. CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant’s military service records show he enlisted in the U.S. Army Reserve on 28 June 1978 and entered active duty in the Regular Army for a period of 3 years on 11 July 1978. Upon completion of basic combat training and advanced individual training (AIT), he was awarded military occupational specialty (MOS) 11B (Infantryman). The applicant then completed additional AIT and was awarded MOS 64C (Motor Transport Operator). 3. Item 35 (Record of Assignments) of the applicant’s DA Form 2-1 shows that on 13 February 1979 he was assigned to Headquarters and Headquarters Company, 1st Battalion, 33rd Armor, 3rd Armored Division (Germany). This item also shows that on 12 December 1979 he was reassigned to Company D, 79th Engineer Battalion (Germany). 4. The applicant's military service records contain a copy of a DA Form 1695 (Oath of Extension of Enlistment), dated 12 June 1980. This document shows, in pertinent part, that the applicant extended his 3-year enlistment of 11 July 1978, a period of 7 months, for the purpose of fulfilling the service remaining requirement for completion of a normal overseas tour. 5. The applicant was promoted to the rank of specialist four/pay grade E-4, effective and with a date of rank of 11 July 1980. 6. The applicant's military service records contain a copy of Headquarters, 21st Replacement Battalion (Germany), Orders 33L-01, dated 26 November 1980. These orders show, in pertinent part, that the applicant was directed to proceed on emergency permanent change of station and report to the Military Personnel Transportation Assistance Point, McGuire Air Force Base, New Jersey, on 27 November 1980, for further assignment as directed by the Department of the Army. 7. The applicant's military service records contain a copy of Headquarters, U.S. Army Military Personnel Center, Personnel Assistance Point, McGuire Air Force Base, New Jersey, Orders 129-1, dated 1 December 1980. These orders show, in pertinent part, that the applicant was directed to proceed on permanent change of station and report to the Quartermaster Company Petrol, Fort Rucker, Alabama, on 26 December 1980. 8. The applicant's military service records contain a copy of Headquarters, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, Orders 95-26, dated 15 May 1981. These orders show, in pertinent part, that the applicant was directed to proceed on permanent change of station and report to 11th Company, 1st Battalion, 1st Aviation Brigade, Fort Rucker, Alabama, with duty at Pensacola Detachment, U.S. Army Intelligence School and Detachment, Pensacola, Florida, on 15 May 1981. 9. Item 35 of the applicant’s DA Form 2-1 shows that on 26 December 1980, he was assigned to the 108th Quartermaster Company, 46th Engineer Battalion, Fort Rucker, Alabama. This item also shows that on 15 May 1981, he was assigned to 11th Company, 1st Battalion, US. Army Aviation Center Troop Brigade, Fort Rucker, Alabama, with duty at Pensacola Detachment, U.S. Army Intelligence School and Detachment, Pensacola, Florida. 10. The applicant's military service records contain a copy of Headquarters, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, Orders 168-4, dated 28 August 1981. These orders show, in pertinent part, that the applicant was discharged on 26 August 1981, for immediate reenlistment. These orders also show that the applicant reenlisted in the U.S. Army for a period of 3 years, on 27 August 1981, and that he was scheduled to attend the Medical Specialist Course (MOS 91B) at Fort Sam Houston, Texas, beginning on 20 November 1981. 11. The applicant's military service records contain a DA Form 4187 (Personnel Action), dated 3 November 1981, that shows the applicant's duty status was changed from present for duty (PDY) to temporary duty (TDY), effective 2145 hours, 6 October 1981. 12. The applicant's military service records contain a DA Form 4187, dated 3 November 1981, that shows the applicant's duty status was changed from TDY to AWOL, effective 0730 hours, 9 October 1981. 13. The applicant's military service records contain a DA Form 4187, dated 9 November 1981, that shows the applicant's duty status was changed from AWOL to dropped from the rolls (DFR), effective 0730 hours, 7 November 1981. 14. The applicant's military service records contain a DA Form 4384 (Commander’s Report of Inquiry/Unauthorized Absence), dated 9 November 1981. This document shows, in pertinent part, that the applicant’s commander initiated an inquiry into his whereabouts and, in Item 10 (Possible Contributing Factors Causing AWOL), he placed an “x” in the “Other” block and entered “[p]ossible threat for loss of life and SM [Service Member] performed duties as informant to military law enforcement agencies.” 15. The applicant's military service records contain a DA Form 4187, dated 11 December 1981, that shows the applicant's duty status was changed from DFR to PDY, effective 1530 hours, 5 December 1981. 16. The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 11 December 1981, that shows the applicant’s commander preferred a court-martial charge against the applicant for his violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for the period of AWOL from on or about 9 October 1981 to on or about 5 December 1981. 17. The applicant’s military service records show that, as a result of the 56-day period of AWOL, his date of rank for specialist four/pay grade E-4 was adjusted from 11 July 1980 to 7 September 1980. 18. On 15 December 1981, the applicant requested a discharge for the good of the Service, in lieu of trial by court-martial, under the provisions of chapter 10 of Army Regulation 635-200. The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a discharge under other than honorable conditions, if the request for discharge is approved; and the rights available to the applicant. 19. The applicant signed his request for discharge which showed that he was making the request under his own free will and acknowledged guilt to the offenses charged; that he was afforded the opportunity to speak with counsel; that he was advised he may be furnished a separation under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge. 20. On 5 January 1982, the captain serving as Commander, 11th Company, 1st Battalion, 1st Aviation Brigade, Fort Rucker, Alabama, indicated that he had considered the circumstances surrounding the offense and then the total service record of the applicant and, after careful consideration of the factors in the case of the United States versus the applicant, he found little basis to support favorable consideration of his request for discharge. The commander offered, in pertinent part, that there were several vague indications that military officials were aware of the applicant’s whereabouts and talk about his safety, threat of life, and his future ability to soldier in view of the threats. The commander added that all of these circumstances needed to be fully explored for they may represent matters in extenuation or mitigation. The commander also stated that it could be documented that the applicant had been cooperative with several law enforcement and investigative agencies over the years and had been a key factor in several successful government trial cases. The commander concluded by recommending the applicant’s request for discharge for the good of the Service be disapproved. 21. On 5 January 1982, the applicant's request for discharge was endorsed by the lieutenant colonel serving as Commander, 1st Battalion, 1st Aviation Brigade, Fort Rucker, Alabama, who recommended disapproval of the applicant's request for discharge for the good of the Service and added, “[the applicant’s] military record and potential for rehabilitation warrant continued military service. This command finds no valid reason for discharge under Chapter 10, AR 635-200.” 22. On 5 January 1982, the applicant's request for discharge was endorsed by the colonel serving as Commander, 1st Aviation Brigade, Fort Rucker, Alabama, who recommended approval of the applicant's request for discharge for the good of the Service and a general (under honorable conditions) discharge. 23. On 6 January 1982, the major general serving as Commander, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, approved the applicant's request for discharge from the U.S. Army under the provisions of Chapter 10 of Army Regulation 635-200 and directed that the applicant be furnished an under other than honorable discharge. The commander also directed that the applicant be reduced to the lowest enlisted grade effective the date of the approval of the discharge. 24. The applicant's military service records contain a DD Form 214, with an effective date of 6 January 1982. Item 4a (Grade, Rate or Rank) shows the entry “PV1”, Item 4b (Pay Grade) shows the entry “E1”, and Item 12 (Record of Service), block h (Effective Date of Pay Grade) shows the entry “82 01 05.” This document shows that the applicant completed 3 years, 3 months, and 29 days net active service at the time of his discharge. This document also contains the authority, reason for separation, and character of service and shows that the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10 (Administrative discharge - conduct triable by court-martial) and his character of service was under other than honorable conditions. This document further shows that the applicant was issued a Separation Program Designator (SPD) Code of “JFS” and Reenlistment (RE) Code of “RE-4.” 25. There are no documents in the applicant’s military service records that show he was assigned to, or worked with, the USA CID. 26. There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations. 27. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates. Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. An under other than honorable discharge certificate normally is appropriate for a member discharged for the good of the Service. However, the discharge authority may direct a general or honorable discharge, if such is merited by the member’s overall record during the current enlistment. 28. Army Regulation 635-200, paragraph 1-28 (Reduction in grade), provides that when a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. 29. Army Regulation 635-200, paragraph 5-3 (Secretarial plenary authority), provides that separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. 30. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It also established standardized policy for preparing and distributing the DD Form 214. Chapter 2 contains guidance on the preparation of the DD Form 214. It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record (PQR), Officer Record Brief (ORB), enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket (MPRJ), or any other document authorized for filing in the Official Military Personnel File (OMPF). 31. Table 2-1 (DD Form 214 Preparation Instructions) of the Separation Documents regulation, in effect at the time of the applicant's discharge, contains item-by-item instructions for completing the DD Form 214. The instructions for Item 4a (Grade, Rate or Rank) and 4b (Pay Grade) state to enter active duty grade of rank and pay grade at time of separation and for Item 12 (Record of Service), block h (Effective Date of Pay Grade), it states to enter the effective date of promotion to pay grade. 32. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JFS” as the appropriate code to assign enlisted Soldiers discharged under the provisions of Army Regulation 635-200, Chapter 10 (Administrative discharge - conduct triable by court-martial). The SPD/RE Code Cross Reference Table provides for the assignment of RE-4 for members separated with this SPD code. 33. Army Regulation 635-200, paragraph 3-7a, provides 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. Whenever there is doubt, it is to be resolved in favor of the individual (emphasis added). 34. Army Regulation 635-200, paragraph 3-7b, provides 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 35. Army Regulation 635-200, paragraph 3-7c, provides that 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, fraudulent entry, homosexuality, security reasons, or for the good of the Service. DISCUSSION AND CONCLUSIONS: 1. The applicant contends, in effect, that his under other than honorable conditions discharge should be upgraded to an honorable discharge because the reason he went AWOL was based on a direct threat to his life after having successfully performed undercover work for the U.S. Army CID, which resulted in numerous drug busts and criminal trials at Fort Rucker, Alabama. 2. The evidence of record shows on 12 June 1980, after serving approximately 16 months in Germany, the applicant voluntarily extended his enlistment in order to complete a normal 36-month overseas tour (i.e., through 8 February 1982). The evidence of record also shows that just over 5 months later (i.e., on 26 November 1980), the applicant was issued emergency PCS orders. The evidence of record further shows that the emergency PCS orders assigned the applicant to the Military Personnel Transportation Assistance Point, McGuire Air Force Base, New Jersey, pending further assignment. Thus, based on the fact that a specific follow-on assignment was not available when the emergency PCS orders were issued, it is reasonable to conclude that the applicant’s personal situation warranted expeditious movement out of Germany at that time. 3. The evidence of record shows the applicant was subsequently assigned to Fort Rucker, Alabama, in December 1980, and then assigned with duty at Pensacola, Florida, in May 1981. The evidence of record also shows that the applicant reenlisted for training in MOS 91B with a report date of 20 November 1981 to Fort Sam Houston, Texas. The evidence of record further shows that the applicant departed on TDY en route to Fort Sam Houston, Texas, on 6 October 1981, but on 3 November 1981, his duty status was subsequently changed to AWOL when he failed to report to his duty station for training in MOS 91B; training which he had personally chosen as his reenlistment option. In addition, the evidence of record shows that the applicant’s company commander initiated an inquiry into his whereabouts and indicated that the applicant had performed duties as an informant to military law enforcement and the possibility of a threat to life may have contributed to the applicant going AWOL. However, there is no evidence of record showing the results of the DA Form 4384 (Commander’s Report of Inquiry/Unauthorized Absence) initiated by the applicant’s company commander on 9 November 1981. 4. The evidence of record shows the applicant was returned to military control on 5 December 1981, charges were preferred against him on 11 December 1981, and the applicant requested a discharge for the good of the Service, in lieu of trial by court-martial, under the provisions of chapter 10 of Army Regulation 635-200, on 15 December 1981. 5. The evidence of record shows that the applicant’s company commander and battalion commander recommended disapproval of the applicant’s request for discharge under the provisions of Chapter 10 of Army Regulation 635-200, based on circumstances that might represent matters in extenuation or mitigation for his period of AWOL and the absence of a valid reason for his discharge. The evidence of record also shows that, although the applicant’s brigade commander recommended approval of his discharge, he recommended a general (under honorable conditions) discharge. Despite the foregoing recommendations, the evidence of record shows that the Commander, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, approved the applicant’s discharge and directed an other than honorable discharge be issued with reduction to the lowest enlisted grade effective the date of the approval of the discharge. 6. It is not clear from the evidence of record why the separation authority seemingly disregarded the recommendations of the applicant’s chain of command (i.e., the company, battalion, and brigade commanders) and directed the applicant’s discharge under other than honorable conditions with reduction to the lowest enlisted grade. However, the evidence of record and the foregoing discussion provides substantial reason to believe that the applicant was working with military law enforcement and investigative agencies, along with the strong possibility that he received a threat to his life as a result of this work, which caused him to go AWOL. In this regard, there is no evidence of record, and the applicant fails to provide any such evidence, to show that he sought the protection of law enforcement officials based on a threat to his life. Thus, the Board can not conclusively determine that the applicant’s period of AWOL was, in fact, based on a threat to his life. Consequently, the Board does not absolve the applicant from personal responsibility for the period of his unauthorized absent. Nonetheless, there is substantial evidence for the Board to conclude that the applicant’s under other than honorable conditions discharge was unjust; particularly in view of the fact that his chain of command did not support his discharge under other than honorable conditions. In addition, with respect to an honorable characterization of service, the evidence of record shows that “[w]henever there is doubt, it is to be resolved in favor of the individual.” Therefore, in view of all of the foregoing, as a matter of equity, the applicant’s military service records should be corrected to show that he was honorably discharged, in the rank of specialist four (E-4), with an adjusted date of rank of 7 September 1980; and the authority and reason for discharge corrected to show Army Regulation 635-200, paragraph 5-3, Secretarial plenary authority, with an SPD Code of “KFF“ and RE Code of “RE-1.” BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___JCR__ ___DAC_ ___QAS_ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 correcting his DD Form 214, with an effective date of 6 January 1982, as follows: Item 4a. GRADE RATE OR RANK Delete: "PV1” Add: “SP4” Item 4b. PAY GRADE Delete: "E1” Add: “E4” Item 12. RECORD OF SERVICE Block h. EFFECTIVE DATE OF PAY GRADE Delete: "82 01 05” Add: “80 09 07” Item 24. CHARACTER OF SERVICE Delete: "Under Other Than Honorable Conditions” Add: “Honorable” Item 25. SEPARATION AUTHORITY Delete: "Chapter 10, AR 635-200” Add: “AR 635-200, Paragraph 5-3” Item 26. SEPARATION CODE Delete: "JFS” Add: “KFF” Item 27. REENLISTMENT CODE Delete: "RE-4” Add: “RE-1” Item 28. NARRATIVE REASON FOR SEPARATION Delete: "Administrative discharge conduct triable by court-martial” Add: “Secretarial plenary authority” i. Issue a DD Form 256A (Honorable Discharge Certificate). 2. The Board further determined that 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 providing the applicant with copies of documents related to him working for the U.S. Army Criminal Investigation Division. ____Jeffrey C. Redmann_____ CHAIRPERSON INDEX CASE ID AR20070003794 SUFFIX RECON YYYYMMDD DATE BOARDED 2007/09/20 TYPE OF DISCHARGE UOTHC DATE OF DISCHARGE 19820106 DISCHARGE AUTHORITY AR 635-200, Chapter 10 DISCHARGE REASON In Lieu of Trial by Court-Martial BOARD DECISION GRANT PARTIAL REVIEW AUTHORITY Ms. Mitrano ISSUES 1. 144.0000.0000 2. 3. 4. 5. 6.