ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20170006370 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Letter of support * National Archives (NA) Form 13038 (Certification of Military Service) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Military service records 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 grew up without a father because he left his mother and their four children before he was four years old. His first stepfather beat him and his second stepfather beat him up mentally. To get away from him he quit high school and joined the Army. He got married to a female Soldier when he was 19 years old and a year later his son was born. Six months after his son's birth his wife left Texas with another man and moved to Minnesota leaving him as a single father on active military duty with no family in the area. He immediately contacted his company commander to request a hardship discharge. His company commander insisted that the only thing he could do is to relinquish the rights to his son. This caused him to be absent without leave on two separate occasions. 3. The applicant provided a letter of support from Mr. GES. He has known the applicant since 1984 and found him to be trustworthy and a good friend. [Applicant] is a hardworking, intelligent man who takes pride in doing his best at whatever he tries to do. To his knowledge [applicant] has been a caring father to his son, working hard to take care of him financially and teaching him to be honest and respectful of others. He has a degenerative disc disease but continues to work when able and wants to continue to do so. At this point he cannot afford to buy medical insurance. After military service it seems he should receive coverage through the Veterans Administration. 4. A review of the applicant’s service records shows: a. He enlisted into the Regular Army on 15 November 1977. He reenlisted on 17 July 1980 for 3 years. b. His DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) dated 8 April 1981, indicates that on or about 0700 hours, on 24 March 1981, without authority, absent himself from his unit and remained absent until 8 April 1981. His punishment was reduction to private first class/E-3 c. His DD Form 458 (Charge Sheet) dated 23 December 1981 indicates he was charged with being absent from his unit without authority on or about 6 May 1981 and remained absent until 15 December 1981. d. On 29 December 1981, he consulted with counsel and was advised of his rights. 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. In his request for discharge, he acknowledged: * 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 * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he acknowledged he could expect to encounter substantial prejudice in civilian life if a under other than honorable discharge was issued to him * he elected to submit a statement on his own behalf e. On 29 December 1981, he submitted a personal statement in support of his request for discharge for the good of service. He went absent without leave because he could not handle the military way of life. When he reenlisted his wife left him because she could not handle him being away for long periods of time. He lost everything when his wife left. He feels that he does not have a purpose in life because the Army took all of that away from him. His offenses would have been prevented if his company commander would have discharged him when he requested it the first time. Additional comments may be reviewed (personal statement enclosed in packet). f. He served at Fort Hood, TX from 14 April 1978 to 5 May 1981. He was assigned to the 34th Support Battalion. g. On 7 January 1982, the acting Staff Judge Advocate informed the Commanding General, Fort Carson that the recommendation to approve an other than honorable discharge is legally sufficient. h. On 7 January 1982, the Commanding General, Fort Carson approved the request for discharge under the provisions of AR 635-200, chapter 10 and directed an under other than honorable conditions discharge. In addition, reduction to the lowest enlisted pay grade in accordance with (IAW) AR 600-20, paragraph 7-64c. i. He was discharged from active duty on 1 February 1982. He was discharged under the provisions of AR 635-200, chapter 10. He completed 10 months and 18 days of active service. His DD Form 214 shows he was awarded or authorized Army Service Ribbon and Expert Marksmanship Qualification Badge (M-16). 5. By regulation, discharges under the provisions of chapter 10 of AR 635-200 provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The issuance of a discharge under the provisions of chapter 10, AR 635-200, would have required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of a trial by court-martial. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record IAW the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the length of the AWOL offense and a lack of character evidence submitted by the applicant to show he has learned and grown from the cause of his discharge, the Board concluded that the characterization of service received at the time of separation was appropriate. However, the Board did note that he applicant did have a prior period of honorable service which was not currently depicted on his DD Form 214 and recommended that be added to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :OP :BW :BF 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 partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 15 November 1977 until 16 July 1980.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable discharge) states that an honorable discharge is a separation with honor. Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General discharge) states that a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if such are merited by the member’s overall record during the current enlistment. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 4. 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, 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. ABCMR Record of Proceedings (cont) AR20170006370 4 1