ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 April 2019 DOCKET NUMBER: AR20160017925 APPLICANT REQUESTS: In effect, an upgrade of his characterization of service from under other than honorable conditions to honorable or general under honorable conditions with a reenlistment (RE) code of RE-1, and restoration of his rank/grade to staff sergeant/E-6. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Brief Summary of Events, undated * International Certificates of Vaccination * Separation Documents * DA Form 2-1 (Personnel Qualification Record) * DA Form 2A (Personnel Qualification Record) * Army Commendation Medal Certificate * Leave and Earnings Statement for the period 1-31 October 1990 * Two photographs * Character Reference from Reverend X_____, dated 29 September 1992 * Character Reference, from Mr. X___X____, dated 29 September 1992 * Podiatry Associates of Cincinnati, Incorporated, statement, dated 10 February 2016 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 he wants his discharge upgraded so that he may be eligible for disability from the Department of Veterans Affairs (VA). a. His ankles were broken/fractured between 1986 and 1990. He served as a platoon sergeant at McGregor Range Missile Command for about 1 and ½ years. In May 1990, he was sent to BNCOC (Basic Noncommissioned Officer Course) where he passed with a broken ankle. Shortly after he graduated a close friend was killed in a car accident it was hard for him to handle, so he self-admitted into the “Army AA Program,” in effect, the Alcohol Subsistence Abuse Program (ASAP) at Fort Bliss, TX Hospital and he passed TRAC I and TRAC II and was wearing a cast on his ankle (photograph). b. In June 1990, he was sent to the 4th Battalion, 7th Air Defense Artillery Regiment, a Patriot Unit deploying to Germany in September 1990. He was still attending “AA Meetings,” but the first sergeant got fed-up with the meetings and they fell to the side when he attended “ARTEPS” while wearing a cast with crutches in the desert. He started drinking again and he was put on sick leave until 28 August 1990, however, he did not return until September 1990, that period of AWOL equals 29 days, not 37 days. c. He returned to his unit at Fort Bliss, TX and took a room in the barracks, the next morning, he reported to get his shots and orders for Germany, the first sergeant saw him, called the military police, and had him apprehended for being AWOL. He has been clean and sober since 1994 and he has a fulltime job and would like to have a wrongful discharge changed to honorable and restoration of his rank. 3. On 29 August 1978 the applicant enlisted in the Regular Army (RA). A review of his records shows his spouse from Vietnam and: * On 30 June 1986 he reenlisted for 6 years * He fast-tracked through promotions; the highest grade held was staff sergeant (SSG/E-6); however, he served in a Platoon Sergeant (Sergeant First Class SFC/E7)) from March 1989 to February 1990 * He successfully completed military schools to include noncommissioned officer education schools and recruiting school. * He was assigned to Headquarters, Headquarters 2nd Battalion, 71st Air Defense Artillery, Korea from 13 January 1979 to 3 February 1980 and Headquarters, Headquarters 2nd Battalion, 61st Air Defense Artillery, 2nd Infantry Division from 25 March 1988 to 15 February 1989 4. A Request for Duty Status Change shows his duty status was changed from Present for duty to AWOL on 20 August 1990 and he was dropped from rolls on 19 September 1990. 5. A memorandum shows a transmittal of charges against the applicant were requested and received on 25 September 1990. The memorandum is signed by first sergeant SKK as acting commander who recommends trial by special [bad conduct] court-martial. 6. On 26 September 1990, he declined a separation medical examination. There is no evidence that he had an injury or a medical condition that required separation processing through medical channels. 7. On 28 September 1990 court martial charges were preferred against him for being AWOL from 20 August to 25 September 1990. After consulting with legal counsel The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 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 Army Regulation 635-200, chapter 10.  He signed a request for discharge for the Good of the Service and indicated he would not submit statements in his own behalf. a. The applicant's unit commander recommended approval of the applicant's request for discharge with service characterized as under other than honorable conditions. The request for discharge was reviewed by the Criminal Law Division, Fort Sill, and was found legally sufficient for further processing. b. The appropriate authority approved the applicant's request for discharge under the provisions of chapter 10, AR 635-200, for the good of the service with service characterized as under other than honorable conditions. He was also reduced to the rank/grade of private/E-1. 8. On 6 November 1990, the applicant was discharged accordingly. He completed 12 years, 1 month and 2 days of net active service. a. His DD Form 214 shows lost time from “900820 – 900925” and that he was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Army Achievement Medal (1 Oak Leaf Cluster) * Noncommissioned Officer Professional * Sharpshooter Marksmanship * Qualification Badge Hand Grenade * Army Good Conduct Medal (3rd Award) * Recruiter Badge Expert Marksmanship Qualification * Development Ribbon (2nd Award) * Badge Rifle (M-16) b. The applicant provides a copy of orders and certificate showing he was awarded the Army Commendation Medal which is not listed on his DD Form 214; however, the evidence provided is sufficient to reflect the correction in the Administrative Notes of this record of proceedings. 9. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and his request was denied on 26 October 1995. 10. The applicant provides the following documents: a. A brief summary of his military career, he states, in pertinent part: (1) His military career was uneventful until 1986, he made staff sergeant, at Fort Hood, went to recruiting school, got married a second time, and started drinking. He completed recruiting school and had a few discrepancies in the Recruiting Command and was assigned to Korea next to the Demilitarized Zone on an unaccompanied tour when his wife got hooked on drugs and put him in debt in the amount of $15,000. He filed for bankruptcy in El Paso, TX and he was subsequently divorced from his second wife. (2) He was reassigned to McGregor Range Missile Command, NM and sent completed basic noncommissioned officer school (BNCOC); during this time his close friend was killed. It was hard for him to deal with and he self-admitted in to the Army's AA [alcohol anonymous] program and completed TRAC I and II [treatment programs]. While in BNCOC he fractured his leg and still graduated in a cast. (3) He was reassigned to Germany and still attending his AA meetings but his first sergeant was getting fed up with the meetings. The pressures of being divorced, AA, the cast on his leg and training every other weekend finally got to him. He doesn't know what he was thinking, it was stupid and not well thought out, he went AWOL but came back before he was dropped from rolls and went through a promotion board before going to Germany. His assistant first sergeant saw him at the board and had him apprehended for AWOL and he was sent to Fort Sill for separation. (4) He would like to redeem himself with the U. S. Army and be given the opportunity to serve his country and state in the Kentucky Army National Guard. Since his separation, he has remarried and God has replaced his need to drink. b. An International Certificate of Vaccination that shows on 25 September 1990, he received 2 vaccinations and a photograph of a person standing by a truck wearing what appears to be some type of cast on his right foot and a class photograph. c. A statement from the Podiatry Associates of Cincinnati Incorporated that shows he was provided a medical statement that stated please limit the applicant’s work day to eight hours, due to foot pain, as a result of plantar fasciitis. d. A character reference from Reverend X_____ that indicates the applicant and his wife had been outstanding members of the church; the applicant was sincere, prompt, diligent in his work habits, and he had a great sense of humor and a character reference from Mr. X____ that states he knows the applicant to be trustworthy, diligent and prompt, and his job experience and leadership qualities would be an asset to any team. 11. The applicant requests that his drinking problems and other personal problems, to include his personal statements. His service record contains no information indicating he had an alcohol related problem. 12. 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. 13. His record shows he served 11, years 11, months and 21 days of honorable service prior to going AWOL. a. In regards to the applicant contention about AWOL, he states he returned to duty and signed in prior to being dropped from rolls; however, his record is void of evidence changing his duty status from AWOL to present for duty or of a roster he may have signed in on. His record shows he was AWOL from 20 August to 25 September 1990 (30 days) and the period from 26 September to 27 September 1990 is also lost time. He was in a lost time status until he departed Fort Sill, on excess leave on 28 September 1990. b. The applicant provides a detailed statement about his AA treatment and his he personal and professional hardships he was experiencing prior to going AWOL. His record shows he was a successful Soldier who fast tracked his promotion to SSG and awarded the Army Good Conduct Medal (3rd Award), the Army Achievement Medal and the Army Commendation Medal for his service. 14. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the strong and lengthy military record of the applicant prior to the AWOL event which resulted in discharge, as well as the mitigating factors presented by the applicant to explain the circumstances relating to the AWOL, the Board concluded that upgrading the characterization of service to Under Honorable Conditions (General), changing the RE code on the applicant’s DD214 and restoring the rank of the applicant was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show the following change: * Characterization of service: Under honorable conditions (general) * RE Code: 1 * Rank: Staff Sergeant 2. Prior to closing the case, the Board noted the administrative notes below by the analyst of record. The Board recommended those changes be made as well to more accurately depict the military service of the applicant. 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. AR 635-5 states authorized awards and decorations will be annotated on the DD Form 214 and for those 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 “CONTINEOUS HONORABLE ACTIVE SERVICE FROM” (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment). 2. As a result, amend his DD Form 214 by adding: a. The Army Commendation Medal (1st Award); and b. item 18 (Remarks) of his DD Form 214 by adding the following entry “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19780829 – 19810521 and from 19810522 - 19860129.” 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 600-200 (Enlisted Personnel Management System) provides that when the separation authority determines a Soldier is to be discharged from the service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade. Board action is not required for this reduction. The commander having separation authority will, when directing a discharge under other than honorable con­ditions, or when directed by higher authority, direct the Soldier to be reduced to private, E-1. 3. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides that a Soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). c. 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. d. Prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. 4. AR 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR). Table 3-1 included a list of the RA RE codes: a. RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible for enlistment unless a waiver is granted. 5. AR 635-5 (Personnel Separations – Separation Documents) states 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 “CONTINEOUS HONORABLE ACTIVE SERVICE FROM" and specify the appropriate dates. 6. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides 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 states the SPD code of KFS is the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, chapter 10, for the good of the service – in lieu of court-martial. The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of KFS. 7. 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. ABCMR Record of Proceedings (cont) AR20160017925 8 1