BOARD DATE: 24 July 2020 DOCKET NUMBER: AR20200001333 APPLICANT REQUESTS: * Upgrade of his under other than honorable conditions discharge to honorable * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Certificate of Recognition * Letter of Support * Governor's Citation FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 feels he made an error in judgment while on active duty, but since his discharge, he has tried to live a good life, and he believes he has set an example for the youth in his community. He truly regrets his error and has learned from his mistakes. The applicant provided additional details in a self-authored statement: a. In 1980, the applicant entered the Army right out of high school; he had hopes for a promising career in the Army. Unbeknownst to him at the time, he would have to go through a series of tests right when he had only 6 months remaining of his 3-year enlistment. The applicant affirms he made one of the most childish decisions of his life, and the trouble that followed shattered his dreams of a military career. b. Until he made his momentous mistake, he had never gotten into any trouble, but his actions were the start of a downward spiral; he went absent without leave (AWOL) and, after being court-martialed, they demoted him from specialist four (SP4)/E-4 to private (PV1)/E-1. As a result, his pay was garnished, and he felt severely disheartened; he made the irrational and unprofessional decision to leave the Army, and the effects of this terrible choice have haunted him for years. Now that he is older, he understands the weight of his youthful indiscretions. c. He is now an active member of society, and he works to build up the youth and young men of his community. He was called to the ministry in 2004, and for the past 15 years has been actively involved in summer youth programs, creating jobs for young people aged 14 to 18; he also notes he earned his doctoral degree in Theology. The applicant maintains he has truly learned from his awful mistakes and he prays the Board can remove the burden of his adverse discharge from over his head. 3. The applicant provides his DD Form 214, two recognitions (one from a State governor and the other from the mayor of a major metropolitan area), and a letter of support from his spouse. 4. The applicant's service records show: a. On 22 October 1980, the applicant enlisted in the Regular Army for 3 years. Following initial training, orders assigned the applicant to Germany, and he arrived on 17 February 1981; on completion of his tour, orders reassigned the applicant to Fort Bliss, TX, and he arrived on 14 September 1982. Effective 1 February 1983, the applicant's chain of command promoted him to SP4. b. On 4 February 1983, the applicant's Fort Bliss unit reported him as AWOL; on 23 February 1983, the applicant returned to military control. On 25 February 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for the following UCMJ violations: failing to be at morning formation on 31 January 1983, and again on 4 February 1983; willfully disobeying a sergeant's (SGT) order to clean up the latrine; using disrespectful language toward the SGT; and going AWOL from 4 until 23 February 1983 (19 days). Punishment included reduction from SP4 to private (PV2)/E-2 and a suspended forfeiture of $300 per month for 2 months, of which 1 month was suspended. c. On 14 March 1983, the NJP's imposing official vacated the suspension of forfeiture because the applicant had disobeyed an order to report for extra duty. d. On 28 March 1983, the applicant accepted NJP for being AWOL from 17 until 18 March 1983; punishment included reduction to PV1. On 29 April 1983, the applicant again accepted NJP for the following UCMJ violations: for disobeying a SGT's order to check a vehicle's oil levels and for using disrespectful language toward the SGT. e. On 11 May 1983, the applicant's Fort Bliss commander initiated a bar to reenlistment action against him based on his NJPs and numerous counseling statements. On 20 May 1983, the applicant's battalion commander approved the bar to reenlistment. f. On 21 May 1983, the applicant's unit reported him as AWOL and dropped him from Army rolls, effective 20 June 1983. On or about 23 September 1983, civil authorities arrested the applicant and returned him to military control; orders reassigned the applicant to the U.S. Army Personnel Control Facility (PCF) at Fort Dix, NJ. g. On 23 September 1983, PCF staff interviewed the applicant, asking him why he had gone AWOL and what actions he had taken prior to going AWOL. The applicant stated he went AWOL because there had been a death in his family; the deceased was not in the applicant's immediate family, but the person and the applicant had been close. The applicant indicated that before leaving his unit he had seen a chaplain. h. On 26 September 1983, the applicant's PCF commander preferred court-martial charges against for AWOL from 7 October 1982 until 4 February 1983 (125 days). On 11 February 1983, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he stated no one subjected him to coercion and counsel had advised him of the implications of his request; he further acknowledged he was guilty of the charges. He elected not to submit a statement in his own behalf. i. On 30 September 1983, the separation authority approved the applicant's request, and directed his under other than honorable conditions discharge; in addition, the separation authority ordered the applicant's reduction to the lowest enlisted grade (the applicant was already a PV1, so no change resulted). On 25 October 1983, the applicant was discharged accordingly; his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 7 months and 13 days of his 3-year enlistment contract, with lost time from 4 February 1983 to 22 February 1983 and 21 May 1983 to 22 September 1983. He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, and two marksmanship qualification badges. 5. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR on a case-by-case basis. 6. Per the version of the Manual for Courts-Martial in effect at the time, the maximum punishment for AWOL in excess of 30 days included a punitive discharge; Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and offered in-lieu of trial by court-martial. 7. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board determined the available evidence is sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. 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, his bar to reenlistment, 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 or post-service mitigating factors 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 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. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. The Soldier was to be given a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 3. The Manual for Courts-Martial, United States, 1984, Maximum Punishment Chart showed the maximum punishment for violations of Article 86 (AWOL for more than 30 days) included a punitive 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 (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 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. 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. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of the ABCMR on a case-by-case basis. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001333 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200001333 6 ABCMR Record of Proceedings (cont) AR20200001333 5