IN THE CASE OF: BOARD DATE: 10 March 2020 DOCKET NUMBER: AR20170010286 APPLICANT REQUESTS: Reconsideration of his previous request for an upgrade of his under conditions other than honorable discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character reference letters x 2 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR 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. 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 AR20060004735 on 11 October 2006. 3. The applicant states in effect: a. When this action took place, he had no understanding of what was taking place. He had lost his dad and did not fully comprehend what he had done. He was completely confused and disoriented, and would have never gone that route had he known it was improper. b. At the time of his discharge, he was told his discharge would be a general under honorable conditions, which is the reason they kept making him go in the gas chamber and no one would help him while vomiting fluids. He has had allergies and migraines since then. 4. The applicant provides letters of character reference from his specialty doctor and his clinical social worker, wherein they both essentially state they have each known the applicant in the capacity of being his medical oncologist and social work provider, respectively, while the applicant has undergone treatment for cancer at the medical facility for cancer. The letters further explain, in effect: a. The applicant has been living with cancer since October 2015 and has shown exemplary character throughout his treatment course, arriving on time to his appointments and complying with the treatment team's recommendations. He has been kind to his care providers and appreciative of all the care he has received. The applicant has shown gratitude and respect to all of the staff he comes into contact with the center. b. In addition, the applicant is a dedicated husband and father, and continues to serve his family in these capacities despite the many challenges coping with a cancer diagnosis presents. The applicant is a man of deep faith and has shown dedication in his role as a husband and father, and speaks often about the honor it was for him to serve his country in the Army. It is without hesitation that the provider and clinical social worker endorse the applicant for any position or endeavor that he pursues. 5. A review of the applicant’s service records shows the following on: * 3 May 1981 – reported as Absent Without Leave (AWOL) * 2 June 1981 – dropped from rolls (DFR) by company commander * 25 August 1981 – status changed from DFR to present for duty 6. On 27 August 1981, the applicant was charged with being absent without authority from on or about 2 May 1981 to on or about 25 August 1981. 7. The applicant waived his rights Article 31 rights (Rights Warning) and willingly provided a statement to the cadre present. When asked why he went AWOL from Fort Benning, GA, the applicant responded it was because he didn’t want to go through any basic training again which was Infantry (11B) One Station Unit Training. “They” didn’t tell him anything about a bonus or anything for a National Guard when he spoke with the Liaison Officer. He had walked to his platoon sergeant and the company commander regarding a way of “getting out” and they told him the only way he would get out was if he were court-martialed. A Fort Dix Control Facility Form 691 (Personnel Control Facility Information Sheet) shows the applicant elected he did not want a physical and did not want to stay in the service. 8. On 28 August 1981, after consulting with counsel, the applicant requested discharge for the good of the Service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. He was advised of the basis for the contemplated separation action, the possible effects of a discharge, and the rights available to him. He further acknowledged, as a the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life. He elected not to make statements in his own behalf. 9. The applicant underwent a mental health evaluation wherein his Report of Mental Status Evaluation shows he had normal behavior, was fully alert and oriented, with level mood and affect, and he had clear thought process, normal thought content, and good memory. The medical officer endorsed the form confirming he had the mental capacity to understand and participate in board proceedings. 10. The appropriate authority approved the applicant’s request, directed an UOTHC Discharge Certificate, and directed that he be reduced to the lowest grade under provisions of AR 600-200, Paragraph 8-11. 11. On 22 September 1981, the applicant was discharged in accordance with the appropriate authority’s decision. 12. On 24 March 2006, the applicant petitioned the Board to upgrade his discharge to under honorable conditions. At the time, the applicant stated he was told during the processing of his separation that his discharge would automatically become an honorable discharge and he didn’t sign any paperwork agreeing to this type of discharge. On 11 October 2006, the Board denied his request. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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 at any time after the charges have been preferred. A UOTHC discharge is normally considered appropriate. 14. In reaching its determination, the Board can consider the applicant's petition, his statement and service documents, in light of the published Department of Defense guidance on equity, injustice, or clemency. 15. See references below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the frequency and nature of his misconduct, the charges against him, his request for discharge and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the applicant’s misconduct. The Board considered the letters of support from his specialty doctor and his clinical social worker, but found the applicant provided no additional evidence of post-service achievements or letters of reference. The Board found the evidence he provided insufficient to support a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 to amend the decision of the ABCMR set forth in Docket Number AR20060004735 on 11 October 2006. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with 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. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 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. Where there were infractions of discipline, the extent thereof was considered, as well as the seriousness of the offense(s). A member was not necessarily denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under Article 15, Uniform Code of Military Justice (UCMJ). 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 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and 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 on the basis of 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170010286 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1