ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160015883 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 29 March 2019, in which the Board members recommended denial of the applicant’s request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 2 October 1986 to reflect a General, under honorable conditions character of service. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 26 September 2019. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: BOARD DATE: 29 March 2019 DOCKET NUMBER: AR20160015883 APPLICANT REQUESTS: In effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a more favorable narrative reason for separation than “for the good of the service-in lieu of court-martial.” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement written in his own behalf * Character Reference Statements (x21) 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 believes his narrative reason for separation should be changed because he was experiencing the strain of family problems at the time. Most importantly, his senior noncommissioned officers (NCO) did not advise him how he could correct his behavior or family situation. His moral compass is positive and he is pursuing excellence in all matters of life. He does not want his military record to reflect the poor choices he made at the time he served. 3. In a statement written his own behalf, the applicant states, in effect, he is not writing this statement to make an excuse for what he did. He is writing to give the Board an idea of where is head was or was not at the time. He states he had just experienced the loss of his father, which affected him greatly. To understand his loss you would have to understand the relationship between him and his father. He left his father alone when he joined the military when his father did not want him to go. However, at the time he realized he had to establish a life for himself. He does not regret his time in the military. He had some good times and experiences and it brought clarity and meaning to his life. Had some unresolved issues that he did not realize he had until he lost his father. He realized at that time there was no excuse for what he did. He turned his back on almost two [periods of] service. He requests that the board take into consideration his statements. He states he found the Lord twenty six years ago. He now realizes the full extent of the problems he caused, not only to the Army but to himself. He prays the Board will decide in his favor. But even if not, he requests that the Board members forgive his actions. 4. The applicant served honorably in the Regular Army (RA) from 10 September 1980 through 8 September 1983. 5. On 9 September 1983, at Fort Lewis, WA, he reenlisted in the RA for 3 years, military occupational specialty 64C (Motor Transport Operator), and in the rank/pay grade of specialist four/E-4. On 5 October 1985, he was assigned to Fort Stewart, GA. 6. The applicant’s service record contains three DA Forms 4187 (Personnel Actions) dated between March and August 1986 showing: a. On 3 March 1986, he was reported in an absent without leave (AWOL) until he was apprehended by civilian authorities on 16 August 1986 in Macon, GA, for a civilian charge of uttering worthless checks. He was confined at Bib County Jail, Macon, pending a court appearance. b. On 20 August 1986, the applicant appeared in Bib County Court, Macon, GA and found guilty of the above charge and placed on probation for 12 months. He was returned to military control at the Special Processing Company, Fort Knox, KY, pending AWOL/DFR [dropped from rolls] charges at Stewart. 7. On 26 August 1986, he declined a separation medical examination. 8. On 28 August 1986, court-martial charges were preferred against the applicant for being AWOL from 3 March to 20 August 1986. 9. On 29 August 1986, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial was approved, and of the procedures and rights available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. 10. The applicant requested and was placed on excess leave on 29 August 1986 pending disposition of his request for discharge under the provisions of chapter 10. 11. On 8 September 1986, his immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge. 12. On 12 September 1986, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, AR 635-200, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade, if appropriate. 13. On 2 October 1986, the applicant was discharged accordingly. His DD Form 214 shows: * Net Active Service this Period: 5 years, 7 months, and 6 days * Lost Time: 3 March to 19 August 1986 * Remarks: Immediate Reenlistment this period: “19830909-861002” * He was awarded or authorized: * Army Service Ribbon * Rifle M-16 Expert Qualification Badge * Hand Grenade Qualification Badge * Overseas Service Ribbon * Army Good Conduct Medal * Foreign Service: 1 year, 5 months and 28 days * Separation program designator (SPD) code as "KFS" * Narrative Reason for Separation: For the Good of the Service-In Lieu of Trial by Court-Martial 14. The applicant provides 21 character letters dated between 6 and 24 August 2016 from colleagues, friends, church members, family members which includes three brothers and a sister, pastors, his wife, and an Evangelist, who state the applicant: * is a practicing bishop, respectful and honorable man of God * has a firm character, he has the ability to laugh, and it is a great joy to be in his presence * loves the Lord first, his family, and others, he is honest, intelligent, and trustworthy * is a Godly man, always willing to help in any way that he can, he is a family man and devoted husband, he is a lead guitarist and Sunday school teacher in his church * has a humbleness of spirit, and he is dependable, his military experience appears have given him the discipline that has propelled him to become a great leader, mentor, and model citizen, he is also an outstanding member of the community * deserves a second chance, he helped establish a strong church where he became the pastor, and he has helped others pursue their dreams, he is fair minded * demonstrates morale integrity and he is a loving person * has wisdom and sense of fair play, he is a go-to-person for advice and encouragement * deserves the grace and consideration that he gives to others every day * leads by example, he knows how to draw out the best from others * has good judgement and a mature outlook and God is foremost in his life * embodies a strong sense of integrity, passion, and influence that touches everyone around him, he has the ability to inspire the young and the mature * has deep spiritual conviction which has earned him he respect of his community, his kindness and generosity are unparalleled * is a good person, he tells the truth, he demonstrates that he has values, and he shows compassion for others 15. The applicant contends his narrative reason for separation should be changed due to the family strain he was experiencing and because his senior NCO’s failed to advise him of how to take appropriate action to correct his behavior and family situation. However, the applicant was apprehended and convicted by a civil court and was given 12 months of probation while he was in an AWOL status. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. 16. The applicant states, in effect, due to the passing of his father he was experiencing a personal emotional hardship, his head was not in the right place. He provides 21 character references where each individual speaks very highly of the applicant concerning his love for the Lord and people and the way that he demonstrates it on a daily bases in his compassion, his teachings, and the dignity, and respect that he shows toward others. His record shows he had honorable service from 10 September 1980 to 28 August 1986 and was awarded the Army Good Conduct Medal. a. AR 635-5-1, in effect at the time, provided 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 identified the SPD code of "KFS" as being associated with separations under the provisions of chapter 10, AR 635-200; the required narrative reason for separation was "in lieu of trial by court-martial." b. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. 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. 17. In reaching its determination, the Board can consider the applicant's petition, his service record, and his submitted statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and letters of support were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed the narrative reason for separation provided at his time of discharge was warranted, and is not recommended for amendment. 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. 5/7/2019 X CHAIRPERSON Signed by: KEASLING.TIMOTHY.WAYNE.1083013792 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): 1. A review of the applicant’s record shows his DD Form 214 for the period ending 2 October 1986 is missing an important entry that may affect his eligibility for post- service benefits. 2. As a result, amend the DD Form 214 by adding the following entry “CONTINEOUS HONORABLE ACTIVE SERVICE FROM 10 September 1980 through 8 September 1983.” 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the regulation in effect at the time (and the version currently in effect) provides 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. b. Paragraph 3-7a of the regulation currently in effect 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. c. Paragraph 3-7b of the regulation currently in effect 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. 3. AR 635-5 (Separation Documents), in effect at the time, prescribes policies and procedures for completion of the DD Form 214. It stated, based on the specific separation authority, the source of the SPD code and narrative reason for separation was AR 635-5-1 (SPD Codes). 4. AR 635-5-1, in effect at the time, provided 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 identified the SPD code of "KFS" as being associated with separations under the provisions of chapter 10, AR 635-200; the required narrative reason for separation was "in lieu of trial by court-martial." 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 based on 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//