IN THE CASE OF: BOARD DATE: 29 June 2020 DOCKET NUMBER: AR20200001121 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Certificate of Promotion, dated 1 November 1981 * Director of Material Test, U.S. Army Electronic Proving Ground, Fort Huachuca, AZ, Letter of Appreciation, dated 12 November 1981 * Battalion Commander?s Endorsement to Letter of Appreciation, dated 4 November 1982 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Photo from Article ?Labor Day Road Race marks silver anniversary? FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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: a. When he enlisted for a term of 4 years, his intentions were to be a career Soldier. During that time in the service, he was awarded the Army Service Ribbon, Good Conduct Medal, M16 Rifle Sharpshooter Badge, and many Letters of Achievement. He only had a few months left before his ETS (expiration term of service) or reenlistment. He went home on leave because of marital problems. His commander along with his First Sergeant extended his leave time to ?excess leave? because he was trying to get a hardship transfer (compassionate reassignment) but it was not approved. b. He took a flight from Fort Benning, GA, to Fort Bragg, NC to an installation where other Soldiers were being held. He continued to ask about a hop (space available military flight) back to Germany but he was denied continually. After two months of being held there, he was told he was being kicked out of the service because he was considered absent without leave (AWOL). He was placed in a position to go absent without leave (AWOL). It was his right to go back to his duty station in Darmstadt, Germany. He only received his DD Form 214 three years ago. It shows he was held for two months from taking a hop back to his duty station in Germany. c. Since he has been home, he has been a model citizen and has not been into any trouble. He has his own business; he and his father own boarding houses and rent out to people. He has been a ?top dog? at jobs he used to work. He participated in many road races including Saint Jude. 3. On 6 November 1979, at the age of 20 years old, he enlisted in the Regular Army for a term of 4 years. After initial entry training and a stateside assignment at Fort Huachuca, AZ, on 10 February 1982, the applicant was assigned overseas in Germany. 4. His record shows on 16 December 1982, the applicant’s immediate commander, on behalf of the applicant, requested funds from the Army Emergency Relief (AER) in Germany to defray the cost of a return plane ticket from the U.S. to Germany. The ticket was needed in order for the applicant to take leave to his home in the U.S. to resolve some personal problems. 5. Company Commander’s Letter of Appreciation, dated 23 December 1982, shows he expressed his appreciation to the applicant for a superior job during a command post exercise in Germany. 6. On 6 April 1983, the applicant’s duty status was changed from present for duty to AWOL. On 6 May 1983, he was dropped from the unit rolls and on 12 October 1983, he surrendered to military authorities (AWOL for 189 days) and was assigned to the U.S. Army Personnel Control Center, Fort Bragg, NC. On 14 October 1983, charges were preferred against the applicant for the offense. 7. The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, Chapter 10. The applicant elected to submit statements on his own behalf, if submitted the statements are unavailable for review. 8. The immediate commander recommended approval. The commander stated he personally interviewed the applicant and the applicant stated he was aware of the nature of the interview and the consequences of a discharge under other than honorable conditions. He desires elimination from the Service under AR 635-200, Chapter 10. Service Member departed AWOL from his unit and his approximate 189 days of AWOL were due to marital and personal reasons. He stated that he was having problems with his family. He went on leave and failed to return. His wife did not want to go to Germany and she was taking care of her parents. He was sending all his money home and was not sure everything was being done properly. He surrendered to military authorities at Camp Lejeune, NC. In view of the Service Member’s attitude toward the military and his lack of rehabilitative potential, he recommended discharge with a UOTHC. 9. The intermediate commander recommended approval and on 14 February 1984, the appropriate separation authority approved the applicant's request directing he be reduced to the lowest enlisted grade and he be issued a discharge under other than honorable conditions. 10. The record is void of a medical examination and mental status evaluation. 11.. On 7 March 1984, he was discharged accordingly. His service was characterized as UOTHC. He completed 3 years, 9 months, and 26 days of net active service this period, with 189 days lost. His DD Form 214 shows he was awarded or authorized the Good Conduct Medal and the M16 Rifle Sharpshooter Marksmanship Qualification Badge. 12. On 31 October 1984, the Army Discharge Review Board denied his petition for an upgrade of his discharge, determining he was properly and equitably discharged. 13. The applicant provides: a. Certificate of Promotion, dated 1 November 1981, which shows the applicant was promoted to Specialist Four on this date. b. Director of Material Test, U.S. Army Electronic Proving Ground, Fort Huachuca, AZ, Letter of Appreciation, dated 12 November 1981, which states, in pertinent part, he would like to take the opportunity to extend his appreciation and gratitude for the applicant’s outstanding contributions to the Position Location and Reporting System test program. He spent long arduous hours in the desert heat and summer rain. He endured the chill of the desert nights and still faced each day with enthusiasm. His outstanding initiative, exceptional devotion to duty, and professional attitude were models of efficiency and added credence to the phrase ?no Soldier is more professional than I.? c. Battalion Commander?s Endorsement to Letter of Appreciation, dated 4 November 1982, states he wanted to add his personal appreciation to the attached letter from COL A. (not available for review), Deputy Chief of Staff of Operations and Plans, 5th Signal Command. The professionalism and dedication exhibited by him during REFORGER 82 were indicative of the fine Soldiers the have in the Signal Battalion. His ability to provide outstanding communications for the Signal Command Control Center did not go unnoticed. d. Photo from Article ?Labor Day Road Race marks silver anniversary? shows several runners in a road race with caption ?Runners head out at the start of the 5K portion of the Labor Day Road Race at Pio Nono and Vineville avenues Monday.? 14. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) 1969 (Revised Edition) included a bad conduct or dishonorable discharge. According to the MCM, Article 86, UCMJ –– absence without leave for more than 30 days, included a dishonorable discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 15. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined 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 :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, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 3. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. An honorable discharge 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. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. 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. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) 1969 (Revised Edition) included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. According to the MCM, Article 86, UCMJ –– absence without leave for more than 30 days, included a dishonorable discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 5. 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 rather 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// ABCMR Record of Proceedings (cont) AR20200001121 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200001121 7 ABCMR Record of Proceedings (cont) AR20200001121 5