ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20170009572 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his discharge from under other than honorable conditions to general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050011458 on 27 April 2006. 2. The applicant states, in effect, he was only 17 years old at the time of enlistment and wanted to make the Army a career. He went on leave and got caught up in drugs. He states things got really bad to a point that he did not return to duty. He was absent without leave (AWOL) for 6 years. A friend, who happened to be in the military convinced him to turn himself in. He states he did so at Fort Hamilton, NY. The applicant was transferred to Fort Dix, NJ where he was discharged. 3. Since the applicant’s discharge, he has gotten married, has four children, and made a career in computer repair. The applicant states he deserves a chance to fix his record and ask the Board to consider his request to change his character of service to general under honorable conditions. 4. The applicant provided a copy of his DD Form 214 showing he was discharged under the provisions of AR 635-200, chapter 10, for the good of the service-in lieu of court-martial, with a under other than honorable conditions character of service. 5. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 16 June 1981 and attained the rank of private/E-1. b. On 13 October 1981, the applicant went AWOL while assigned to his advanced individual training (AIT) at Fort Gordon, GA. He was dropped from the rolls on 11 November 1981. c. DD Form 458 (Charge Sheet), dated 12 November 1981, reflects the applicant was charged with one specification of absenting himself from his unit (Company B 2nd Battalion (AIT), 1st Signal Training Brigade, Fort Gordon, GA , on 13 October 1981, without authority. d. On 19 February 1987, the applicant’s status was updated to present for duty. e. DD Form 458, dated 20 February 1987, reflects the applicant’s charge was updated to read he was assigned to U.S. Army Personnel Control Facility, U.S. Army Training Center and Fort Dix, NJ, charged with one specification of absenting himself from his unit (Company B, 2nd Battalion (AIT), 1st Signal Training Brigade, Fort Gordon, GA, from 13 October 1981 until on or about 19 February 1987, without authority. f. Orders 051-78, dated 20 February 1987, issued by U.S. Army Training Center and Fort Dix, NJ, assigned the applicant to Company A, USA Personnel Control Facility (PCF), Fort Dix, NJ effective 19 February 1987. g. On 20 February 1987, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service. In his request for discharge, he acknowledged his understanding that: * by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of an undesirable discharge * he acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he was advised he could submit any statements he desired in his own behalf * he elected not to submit any statements in his behalf h. On 3 March 1987, the applicant was made aware of his rights prior to discussing the offense related to his AWOL. He signed a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), thereby, stating he understood his rights prior to discussing his offense. i. Also on 3 March 1987, his PCF commander recommended him for discharge, for the good of the service in accordance with AR 635-200, chapter 10. He also recommended the applicant receive an other than honorable discharge certificate. j. The separation authority approved the applicant's request for discharge on 14 April 1987, under the provisions of AR 635-200, chapter 10, for the good of the service, and directed that he be discharged and given a under other than honorable conditions discharge certificate. k. Orders 141-95, dated 21 May 1987, issued by Headquarters, U.S. Army Training Center and Fort Dix, NJ, notified the applicant that he was assigned to the U.S Army Transition Point for separation processing effective 29 May 1987 and reduced to private/E-1. l. The applicant was discharged from active service on 29 May 1987 under the provisions of AR 635-200, chapter 10, for the good of the service-in lieu of court martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as under other than honorable conditions. He completed 7 months and 4 days of active service during this period and had lost time from 13 October 1981 to 18 February 1987. His DD Form 214 also shows he was awarded the following: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Marksman Marksmanship Qualification Badge with Grenade Bar 6. The applicant previously requested an upgrade his character of discharge in ABCMR Docket Number AR20050011458, dated 27 April 2006. He stated that the character of service given was too severe considering the nature of the offense. He had no additional documentation to support his application. The Board determined the evidence presented did not demonstrate the existence of a probable error or injustice and denied his request because it determined that the overall merits of the case were insufficient as a basis for correction of the applicant’s records 7. 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 8. The Board should consider the applicant’s submission 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 the short term of service completed prior to the lengthy AWOL offense which resulted in the applicant’s separation, 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 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. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7b 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. b. Chapter 10 of that regulation provides, in pertinent part, 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. 2. 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) AR20170009572 5 1