IN THE CASE OF: BOARD DATE: 26 May 2021 DOCKET NUMBER: AR20210007654 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 (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: a. He would like his character of service corrected to show an honorable discharge because of his age and the decision he had to make between his family and his service. He regrets every day that he left the service but he regrets even more that his ex-wife put him in the position that he felt he had no choice. b. He feels like he was discriminated against and the Army did not and would not understand the position he was placed in. To this day he would do anything to defend the nation. He is 100 percent in support of the constitution. If he could re-enlist he would in a heartbeat, but he cannot. However, he still serves this country daily by being a U.S. American citizen and defends this country of ours. c. The upgrade is requested for himself and to get his affairs in order. This was a decision he regrets making, however, at the time he felt he had a huge decision to make. His ex-wife took his two daughters and left He was left with a decision to make between his career in the Army and his family. His two daughters who were 4 and 6 years old meant everything to him. This was a decision he regrets; however, at the time he felt trapped. He made this decision more than 36 years ago and he has been gainfully employed up until March 2019 when he for medical reasons had to stop working and had applied for disability. He is now receiving early social security. He has never been in trouble and has always done the right thing. He would like to go into his golden years with this behind him. He thanks the Board for its time and consideration. 3. On 6 December 1977, the applicant was 19 years old and enlisted in the Regular Army for a period of 3 years. He completed training requirements and was awarded his military occupational specialty. He immediately reenlisted on 6 June 1980 for a period of 6 years. 4. On or about 17 July 1979, his Personnel Qualification Record indicates he was assigned to his unit in Germany. He was promoted to sergeant (E-5) with a date or rank of 13 December 1980. 5. On or about 29 April 1982, the applicant was assigned to his unit in Germany for a second tour. He was promoted to staff sergeant (E-6) with a date of rank of 24 June 1983 and an effective date of 1 July 1983. 6. His record contained Personnel Action forms that show he was absent without leave (AWOL) and dropped from his unit’s rolls for the period covering 8 January to 14 February 1984. The applicant surrendered to military authorities on or about 15 February 1984. 7. On 16 February 1984, he acknowledged 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 may have requested a medical examination. The applicant indicated he did not desire to undergo a medical examination. 8. On 22 February 1984, court-martial charges were preferred against the applicant for being AWOL from on or about 8 January to 14 February 1984. a. On the same date, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Chapter 10, AR 635-200 (Personnel Separations – Enlisted Personnel) because of the AWOL charges preferred against him. b. Counsel advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice; the possible effects of an UOTHC discharge if approved; and of the procedures and rights available to him. c. The applicant did not submit statements in his own behalf and did not desire a separation physical. He also indicated he understood if his request for discharge was accepted he may have been discharged UOTHC and furnished an UOTHC Discharge Certificate, and as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits. He also may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He further understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge. d. His chain of command recommended approval of his request for discharge for the good of the service in lieu of trial by court-martial with an UOTHC Discharge Certificate. e. On 21 March 1984, the separation authority approved the applicant’s request for discharge for the good of the service in lieu of trial by court-martial and directed he be discharged UOTHC. The separation authority also directed the applicant be reduced to private (E-1). 9. On 6 April 1984, the applicant was discharged under other than honorable conditions in accordance with AR 635-200, Chapter 10 (for the good of the service in lieu of trial by court-martial). The DD Form 214 he was issued also shows he completed 6 years, 2 months, and 24 days of net active service with time lost during this period from 8 January to 14 February 1984. He immediately reenlisted this period on 6 June 1980. The applicant was awarded or authorized the: * Army Commendation Medal * Army Good Conduct Medal (2nd award) * Army Service Ribbon * “Hand Grenade FC Qualification Badge” 10. Army Regulation 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. 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. 11. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 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 (circumstances regarding the period of AWOL), 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 no evidence confirming his claims 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. The Board concurs with the corrections described in the Administrative Note(s) below. 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: Other than the corrections addressed in Administrative Note(s) below, the Board determined 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 otherwise 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 6 April 1984, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): • "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" • "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 771206 UNTIL 800605" 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) 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. 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. The regulation also provides, in pertinent part: a. 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. 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. a. 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. b. 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. 4. Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes the standardized policy for preparing and distributing the DD Form 214. It states the DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. The regulation also provides, in pertinent part: a. A DD Form 214 would not be prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army. b. Item 18 (remarks) documents the remarks that are pertinent to the proper accounting of the separating Soldier's period of service. For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" and specify the appropriate dates. For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except "honorable," enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." Then, enter the specific periods of reenlistments as prescribed above. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007654 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210007654 6 ABCMR Record of Proceedings (cont) AR20210007654 5