ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20160016324 APPLICANT REQUESTS: An upgrade of his characterization of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement written in his own behalf 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 military personnel failed to ask him the purpose for his actions. He feels like he was treated unfairly. He hopes the letter he has submitted will be taken into consideration and he will receive a fair discharge. 3. The applicant indicates in a statement written in his own behalf, in effect, that he wanted to go home for the holiday weekend. He does not recall the holiday. He had a daughter and he was suspicious that something was going on with his wife. Usually when he called his mother answered the phone and would say that his wife was not there and she did not know where his wife had gone. His mother would be watching his daughter. It was very disturbing for him because he never received letters or pictures from his wife. He though his wife might leave him and take their daughter. When he did speak to his wife they always argued. He though if he went home he could resolve the problem. Additionally, he states he: a. Asked his sergeant for the weekend off so that he could go home to Chattanooga, TN, he was stationed in Augusta, GA. His sergeant replied, “No.” He went to see the chaplain for help getting a weekend pass. The chaplain said there were three thing in the world that mattered, God, the Army, and family. He replied back to the chaplain, God, family, and the Army. a. b. Felt like he had to go home to find out what was going on. He left unit not knowing he had weekend duty. Had he known, he would have done things differently. He liked the Army and he wanted to make it a career. c. He got to see his daughter and tried to settle things with his wife, but that did not work. He got on the bus to return to his unit when he realized he was not going to get back to his unit before formation. He went back home to save his marriage. He knew the Amy would send someone to get him. One day he parked his car in the driveway, which was on a hill. He stepped out of the car to ask his wife a question, as he turned around he saw the car rolling down the hill with his daughter inside. He stopped the car and his daughter was fine, but his car hit another car and the owner of the other car called the police. The police ran his name and found out he was absent without leave (AWOL) from the Army. He was returned to military control at Fort, Knox, KY. He was seen by mental health and discharge processing was started. He thought he was going to court. He told them he did not want out of the Army. No one asked him why he left. Many of his family members served in the military. If he could change things he would. He wants to make it right. Whether he is helped or not. He finally has a chance to tell his story. 4. On 27 November 1979, the applicant enlisted in the Regular Army for 3 years and tactical wire operations specialist. 5. The applicant’s Personnel Qualification Record shows on 3 April 1980, he left Fort Gordon GA, after completing advanced individual training, in a temporary duty status, enroute to Fort Benning, GA, for completion of airborne training, with a follow on assignment to Fort Bragg, NC. 6. The applicant went into an AWOL status from 14 April to 14 October 1980 until he was apprehended and returned to military control at the U.S. Army Special Processing Company, Fort Knox. 7. On 23 October 1980, court-martial charges were preferred against the applicant for being AWOL from Headquarters and Headquarters Company, 4th Student Battalion, Fort Benning from on or about 14 April to 13 [in effect 14] October 1980. 8. On 24 October 1980, the applicant was given a mental status evaluation. The examiner found he met the physical retention standards prescribed in Army Regulation (AR) 40-501 (Standards of Medical Fitness). The examiner further determined he had the mental capacity to understand and participate in proceedings deemed appropriate by his command. 9. On 24 October 1980, the applicant consulted with counsel and voluntarily requested discharge under the provisions of chapter 10, AR 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service. He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request. He 1. acknowledged he understood the elements of the offense he was charged with and he was: * guilty of the offenses for which he was charged or to lesser included offenses * making the request of his own free will and he was not subjected to coercion * advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate * advised he could submit statements in his own behalf * did not desire further rehabilitation or to perform further military service 11. In addition, the applicant was advised he could expect to encounter substantial prejudice in civilian life if he was issued an under other than other honorable conditions discharge and he: * would be deprived of many or all Army benefits * might be ineligible for many or all veteran's benefits * might be deprived of his rights and benefits as a veteran under both Federal and State laws 12. As part of the separation process the applicant submitted a statement in his own behalf. He indicated that he was age 23 and he joined the Army because he wanted to learn a skill so that his family could have nice things. He also stated, in effect, that he had not been able to cope with the Army. His family meant a lot to him. The way things were looking, he might lose the best part of his life [his family]. He felt he could not be without his family. The reason he was being discharged under chapter 10 was he could not have his family with him. 13. His immediate and intermediate commanders recommended approval of his request for discharge with service characterized as under other than honorable conditions. 14. On 13 November 1980, 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 applicable. 15. Accordingly, on 27 November 1980, the applicant was discharged. His DD Form 214 shows he was discharged under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. This form shows he completed 6 months and 16 days of net active service period. He also had approximately 182 days of lost time. He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 16. The applicant contends he was treated unfairly, no one asked him why he committed the offense [AWOL 182 days] for which he was discharged; he thought he was going to a court-martial. However, as part of the separation process, he: * consulted with counsel, was advised of the basis for the separation process * requested a discharge to avoid a court-martial conviction * submitted a statement in his own behalf and indicated he could not cope with the Army, because he could not have his family with him * stated he did not desire further rehabilitation or to perform further military service * as a result he was discharged under the provisions of chapter 10, AR 635-200, for the good of the service 17. 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. 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 the short term of service prior to the AWOL and the fact that the AWOL ended by apprehension, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 5/1/2019 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. AR 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated that a member who had committed 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 at any time after the charges have been preferred. The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge. A discharge under other than honorable conditions was normally considered appropriate. 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. 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 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 a. 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.