ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 June 2019 DOCKET NUMBER: AR20170005604 APPLICANT REQUESTS: change of his separation code to reflect proper circumstances and an upgrade of his under honorable condition (General) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 believes his service records to be in error. The wording of “misconduct – serious offense – desertion and the separation code do not accurately explain how or why his lost time occurred. He will clearly explain the circumstances of his absences to the Board. He has never regretted his time in service and follows in a long line of relatives that proudly served. He served in combat and would gladly take up arms and serve again. In a self-authored letter, he states the discharge he has carried around for 25 years does not sit well with him because desertion carries a heavy ring. He served during Desert Storm, never deserted his post or was found derelict in his duties as a professional Soldier. The reasons for the absences noted as time lost in item 29 of his DD Form 214 (Certificate of Release or Discharge from Active Duty) are as follows: a. From 9 June 1990 to 12 June 1990, he was approximately two weeks from completing advanced individual training (AIT) when he received a weekend visit from his spouse. She was a high-risk pregnancy and saddled with their other children during his initial training. During her visit, she began to bleed so he decided to depart with her from Fort Sill, OK to Tulsa, OK for a doctor’s visit. Upon his return there were no disciplinary actions. His first sergeant was informed of the situation, he was recycled to the very next class, and graduate two weeks later. He was not considered absent without leave (AWOL) or a deserter. He was only given a verbal reprimand by his Drill Sergeants, Drill Sergeant W. and Drill Sergeant J. b. from 14 February 1992 to 26 March 1992, he had recently rotated back from Saudi Arabia (Desert Storm). As a member of Headquarters and Headquarters Company, 3rd Battalion, 27th Field Artillery, Fort Bragg, NC, he was scheduled to testify in a court case involving a Specialist E. and Specialist H. He began receiving threats from fellow Soldiers about his willingness to testify. He was also informed by his spouse that she had miscarried for the third time so he flew to Tulsa, OK to be with her. After being distraught about the recent events, he called the legal liaison officer several days later. They met at the airport and flew back to Fort Bragg. He was placed in a safekeeping barracks awaiting his testimony at his request. He states again there was no AWOL or deserter charges filed against him nor was he told there would be. The situation was understandable and his colonel was aware of everything. He was separated from the service approximately six weeks later at his own request. c. In closing, he prays the Board considers his request for upgrade and changes his discharge type. He considers his time in the service to be one of his proudest moments. He loved wearing the uniform and deserted no one. 3. The applicant’s service records shows: a. He enlisted in the Regular Army on 28 March 1990. b. He served in Saudi Arabia from 20 August 1990 to 28 March 1991. c. There are no documents indicating he was subject to disciplinary actions. However, his DA Form 2-1 and separation packet are used to identify activities of misconduct. d. In Section III – Service, Training And Other Dates, Item 21 (Time Lost): * AWOL from 9 June 1990 to 12 June 1990 * AWOL from 14 February 1992 to 15 March 1992 * Dropped from Rolls on 16 March 1992 * Returned to military control on 27 March 1992 e. Item 1 of his "recommend to separate packet" shows he received a Field Grade Article 15 for a positive urinalysis between the dates of 1 May and 4 September 1991. f. On 18 May 1992, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12c (1), in effect at the time, for misconduct – serious offense - desertion. The commander indicated that his recommendation is based on the applicant’s being absent without leave (AWOL) from 14 February 1992 to 15 March 1992, being dropped from the rolls on 16 March and eventually returning to military control 27 March 1992. f. On 18 May 1992, the applicant acknowledged receipt of the commander’s intent to separate him, subsequently, he consulted with legal counsel and did not submit statements on his own behalf. He acknowledged: * he waived consideration of his case by an administrative separation board * he waive personal appearance before an administrative separation board * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge * he may ineligible for many or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a Veteran under both Federal and State laws g. Subsequent to the applicant’s acknowledgment, the immediate commander initiated separation action against him for misconduct – serious offense - desertion. The chain of command recommended approval. h. On 1 June 1992, consistent with the chain of command’s recommendations, the separation authority approved the discharge under provisions of chapter 14-12c, by reason of misconduct – serious offense- desertion, and ordered his service be characterized as under honorable conditions (general), and he be issued a General Discharge Certificate. i. On 10 June 1992, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14 paragraph 14-12c of AR 635-200 and was issued a General Discharge Certificate. He completed 2 years and 27 days of active service with 47 days of lost time. It also shows he was awarded or authorized: * Army Service Ribbon * National Defense Service Medal * Southwest Asia Service Medal with 2-bronze stars * Kuwait Liberation Medal (Saudi Arabia) * Marksman Marksmanship Qualification Badge with Rifle Bar (M16) 4. By regulation, action will be taken to separate a soldier for a pattern of misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, Chapter 14-12c. 5. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of service prior to multiple AWOL offenses, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. 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 (AR) 635-200, (Personnel Separations – Enlisted Personnel), in effect at the time, provides for separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states 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 characterization would be clearly in appropriate. b. Paragraph 3-7b (General Discharge) states 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. c. Chapter 14, paragraph 12c of this regulation provides procedures for separating personnel for a pattern of misconduct. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170005604 5 1