IN THE CASE OF: BOARD DATE: 21 August 2020 DOCKET NUMBER: AR20200001338 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge to fully honorable and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character Reference Statement * UOTHC Discharge Certificate * National Safety Council Defensive Driving Course (DDC) Instructor Certificate and Card * General Educational Development (GED) Certificate, dated 9 July 1984 * US Government Motor Vehicle Operators Identification Card 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, in effect, he does not believe his supervisor was aware of the circumstances surrounding his 49-day (sic) absence. He would not make the same choice again. He has learned a great deal from his experiences in 1985. He believes that justice has been served. 3. The applicant provides a character reference statement from Ms. K, who indicates that she come from a family of military members who served honorably back as far as World War II. She spoke to many of those people about the applicant’s circumstances before providing this statement. Additionally, she states: a. She has known the applicant since he was age 17. He was much like a son to her. He came from a broken home. His mother remarried and his stepfather was unwilling to have him and his younger sister in their home. They simply did not want to be tied down to their growing children. They were both forced to live with friends and it was difficult for them. She took them under her wings and they did the best that they could. b. At about age 19, the applicant asked permission to date her daughter and she approved. Their relationship continued for a couple more years and they were married after he entered the Army. Her daughter was age 18 and had never been away from home; therefore she constantly called home. In September [1985] as it was getting close to the birth of their child, things got worse and the calls were unending. She was consistently emotional, crying everyday and calling constantly even more than in the earlier part of her pregnancy. She did not know until much later that the applicant had brought her home without permission. She knew what that meant and immediately called her older brother, who had served in the Air Force. He told her who to call and what to do. c. She delivered her son-in-law [the applicant] to military officials and the Army did what was necessary for him to be there for the birth of his child. d. She sincerely believes had it not been for her daughter's repeated requests and her emotional state, the applicant would not have left the military. It is his deepest regret in life. e. She also sincerely believes that even though he cannot change the choices he made at that time, his status should be changed to honorable. His love of God, duty, country, and family created an undeniable time of incredible stress which tore at him both as a husband and father to be, as well as a military man. f. It is for all of these reasons that his family and hers along with the applicant respectfully request his status be changed to honorable. 4. On 3 April 1984, at age 19, the applicant enlisted in the Regular Army for 3 years. On 10 April 1984, he was assigned to Fort Bliss, TX for training. He completed the training requirements and he was awarded military occupational specialty (MOS) 16R (Air Defense Artillery (ADA) Short Range Gunnery Crewman). 5. His DA Form 20 (Personnel Qualification Record) shows on 27 July 1984 he was assigned to Fort Benning, GA, in a student status for basic airborne training. 6. Two DA Forms 4187 (Personnel Action), dated 20 August 1984 and 8 September 1984, and his DA Form 20 show that he was carried in an absent without leave (AWOL) status from Fort Benning from 20 August through 8 September 1984. The disposition for this period of AWOL is unknown. 7. On 18 September 1984, he was placed on casual leave enroute to Fort Riley, KS. On 9 October 1984, he arrived at Fort Riley, and he was assigned to 2nd Battalion, 67th ADA, with duties in his MOS. 8. DA Forms 4187 show he left his unit in an AWOL status on 16 July 1985. On 15 August 1985, he was dropped from Army rolls and was carried in a desertion status. On 16 September 1985, he surrendered to military authorities at Fort Sheridan, IL, and he was transferred to military control at the Special Processing Facility, Fort Knox, KY. 9. On 17 September 1985, while at the Special Processing Facility, he signed a Medical Evaluation acknowledging that he had been counselled on the requirements for completion of a medical examination prior to separation, he further understood that if he was requesting a discharge for the good of the service (Chapter 10, Army Regulation (AR) 635-200), he was not required to undergo a medical examination; however, he could request a medical examination. He also annotated this statement showing, “I do not desire to undergo a medical examination.” 10. On 19 September 1985, he was charged with being AWOL from 16 July through 16 September 1985. 11. On 20 September 1985, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of 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. He signed a request for discharge for the good of the service and declined an opportunity to submit statements in his own behalf. 12. On 20 September 1985, he request excess leave and he was placed on excess leave pending separation processing. 13. On 23 September 1985, the applicant's immediate commander recommended approval with an UOTHC discharge. The commander also stated based on his previous record, punishment can be expected to have a minimal rehabilitative effect. The commander believed a discharge at this time to be in the best interest of all concerned. There did not appear to be any reasonable ground to believe that he was, at the time of his misconduct, mentally defective, deranged or abnormal. 14. On the same date, his intermediate commander also recommended approval with the issuance of an UOTHC discharge. 15. On 8 October 1985, the appropriate authority approved the applicant’s request for discharge, directed reduction to the lowest enlisted grade, if serving in a higher grade, and the issuance of an UOTHC discharge. 16. On 7 November 1985, he was discharged accordingly. His DD Form 214 shows he completed 1 year, 4 months, and 17 days of total active service. He had lost time from 20 August through 7 September 1984 and from 16 July through 16 September 1985 (a total of 80 days). 17. In reaching its determination, the Board can consider the applicant's petition, his submission, his service record, and statements in light of the published Department of Defense 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, the statement provided by his mother-in-law, 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 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 :XXX :XXX :XXX 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. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an UOTHC discharge was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. 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. d. An UOTHC discharge is an administrative separation from the service UOTHC. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 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. 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) AR20200001338 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200001338 6 ABCMR Record of Proceedings (cont) AR20200001338 5