ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 May 2019 DOCKET NUMBER: AR20160015949 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge. 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 from the Armed Forces of the United States) * Personnel Qualification Record – Part I * 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 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 is requesting an upgrade of his discharge due to his mental and emotional states at the time of him being absent without leave (AWOL). Review of his personnel file will show he was the measure of a good Soldier prior to his period of AWOL. He was promoted to staff sergeant/E-6 in 8 years and he earned several personal awards and commendations. He married his wife in 1985 and they had two beautiful children, a daughter and a son. Other than the Army, his family was the love of his life. After 6 years of marriage, he and his wife divorced while he was stationed in Alaska. Their divorce decree granted a 50/50 custody agreement. However, as a single military parent that was extremely difficult to maintain; therefore, he would normally see his children when school was out. b. His ex-wife was very difficult to deal with and they had worked out an agreement for the children to visit him in Alaska and stay for 1 month. He alone purchased two plane ticket for them. His ex-wife told the Los Angeles Court System that he was going a. to kidnap the children. She requested to accompany the children on their visit to him. As bad as he hated this knowingly volatile situation, he wanted to see his children, so he agreed. They all arrived and almost 7 days later the situation became so terrible and difficult, his ex-wife and children left and returned to California. After this incident, he became distraught and went AWOL. He lived on the streets as a homeless veteran for several weeks and eventually returned to Alabama and turned himself into civilian authorities at Fort Rucker. c. He knows what he did was not right and was a terrible discredit to the Army. He also knows this is not an excuse, but his ex-wife was hateful, vindictive, narcissistic, and used their children as pawns. This affected his mind in such a way that he was unable to think straight and drove him to the point that he was mentally unstable. Their daughter, the oldest, can attest to fact of how her mother used her and her brother against him. 3. Review of the applicant’s record shows: a. He enlisted in the Regular Army (RA) on 14 August 1978 and he held military occupational specialties 13B (Cannon Crewmember) and13C (TacFire Operations Specialist). He served in Germany from 24 May 1980 to 19 May 1982. b. He reenlisted in the RA on 17 February 1982. He was promoted to E-6 on 21 October 1983. He reenlisted in the RA on 19 February 1986. c. He served in Alaska from 22 January 1993 to 21 July 1996. d. He was reported AWOL on 4 August 1993 and dropped from the rolls of his duty station, Fort Richardson, AK, on 3 September 1993. e. On 22 September 1993, court-martial charges were preferred against him for uttering several bad checks between 22 June to 1 July 1993. f. He surrendered to military authorities at Fort Rucker on 20 April 1995, for AWOL status. g. On 26 April 1995, court-martial charges were preferred against him for one specification of being AWOL from 4 August 1993 to 20 April 1995. h. On 26 April 1995, after consulting with consult and being advised of his rights, the acknowledged that he was knowingly, willingly, and voluntarily AWOL for the stated time period. 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. In his request for discharge, he indicated: a. * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions * he acknowledged he understood if his discharge request was accepted he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service * he elected not to submit a statement on his own behalf i. On 9 May 1995, the U.S. Army Personnel Control Facility Commander, recommended approval of the applicant’s request and the issuance of an under other than honorable conditions discharge. He stated that it did not appear to be any reasonable ground to believe that the applicant is, or was, at the time of his misconduct mentally defective, deranged, or abnormal. j. On 19 May 1995, the separation authority approved the applicant’s request for discharge and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade. k. On 15 June 1995, he was discharged from active duty under the provision of AR 635-200, chapter 10. He completed 15 years, 1 month, and 12 days of active service, with time lost from 25 to 27 August 1991 and from 4 August 1993 to 19 April 1995. His DD Form 214 listed his continuous honorable service from 15 August 1978 to 13 March 1991 and that he was awarded or authorized: * Army Achievement Medal with fourth oak leaf cluster * Army Good Conduct Medal (5th Award) * National Defense Service Medal * Noncommissioned Officer Professional Development Ribbon (Advance Level) * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M16) * U.S. Army Basic Recruiter Badge with three gold achievement stars * U.S. Army Basic Recruiter Badge with two sapphire achievement stars * Driver and Mechanic Badge with M Bar 4. An advisory opinion was received from the Medical Advisor/Psychologist, Army Review Boards Agency, on 14 February 2019, in the processing of this case. The 1. psychologist reiterated the applicant’s period of service and stated a review of the VA medical record indicate the applicant has not received VA services. Based on a thorough review of available records, there was insufficient evidence to determine whether or not the applicant had a behavioral health condition and, if so, if it contributed to the misconduct. 5. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. He did not respond. 6. By regulation (AR 635-200), 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. A discharge under other than honorable conditions is normally considered appropriate. 7. 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 determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon a pattern of misconduct over an extended period of time and the medical advisory showing no nexus between a medical condition of the applicant and the misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING MG PB BS 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. 5/23/2019 X CHAIRPERSON Signed by 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) 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. 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 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, 1. 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.