ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 June 2019 DOCKET NUMBER: AR20170011115 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge 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: a. He served three years and reenlisted for two more years. He had good conduct with honorable service during this time period. His daughter was born with complication, he left on leave and requested a transfer; however, it was denied. He stayed with his daughter through her surgeries and when his daughter’s health was stable, he turned himself in. b. He went before a board and was discharge with less than honorable status. He has been an upstanding citizen and has a heavy equipment operation for 30 years for the union. When he went before the board, he was told under the circumstances he would go back and have it upgraded. He loves being a part of the military and pray the Board will allow the change. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 10 November 1975. b. He was attached to Fort Benjamin Harrison, IN pending hardship discharge as per order102-2, dated 12 April 1979. c. On 1 May 1979, the hardship discharge request was disapproved according to orders 121-22, dated 1 May 1979. He had sever days to report to his unit of assignment. d. He accepted nonjudicial punishment on: * 30 May 1978, for disobeying a lawful order, his punishment in part, was reduction to E-3, suspended for 60 days * 11 January 1979, for wrongfully having sexual intercourse with a married woman not his wife e. The five DA Form 4187 (Personnel Action) shows that his duty status changed from: * ordinary leave to absent without leave (AWOL) on 10 April 1979, and from A WOL to temporary duty (TDY) * 1 May 1979 from TDY to ordinary leave, and on 9 May 1979 from ordinary leave to AWOL * 8 June 1979, his status change from AWOL to dropped from the rolls (DFR) f. The DA Form 3835 (Notice of Unauthorized Absence from United States Army) dated 31 January 1980, states the applicant was AWOL from 9 May 1979 and DFR on 8 June 1979. g. The applicant surrendered to military authorities at Fort Benjamin Harrison, IN on 4 February 1980 according to the Personnel Action dated 11 February 1980. The Notice of return of US Army Member from Unauthorized absence was completed on 13 February 1980. h. Court-martial charges were preferred on11 February 1980. His DD Form 458 (Charge Sheet) indicates he was charged with being AWOL from 9 May 1979 to 4 February 1980. i. He consulted with legal counsel on 14 February 1980 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * the maximum punishment * he was guilty of the charge against him or of a lesser included offense which authorized a punitive discharge * he did not desire further rehabilitation or a desire to perform further military service * if his discharge was approved, he may be discharged under conditions other than honorable and the effects of the discharge * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State laws j. Included with his request for discharge, he submitted a statement on his own behalf, which states he went through the 11th grade of high school and he married in June 1975. He and his wife made the decision for him to join the Army. He wanted to be an auto body repairman. He was sent to Fort Hood, TX and after six months he was overseas. He only had eleven month with his wife due to the military, his niece died in March 1979 and his little girl was born in March. He went back to the states on leave and his little girl was hospitalized due to kidney problems. He tried to get reassigned, however, he was told he couldn’t. He even tried to get a hardship discharge. At the time he could not tolerate the Army anymore and he requested chapter 10 discharge. If he did not get the discharge he would have gone AWOL again. k. He underwent a mental evaluation on 12 February 1980 and the examiner stated he has the mental capacity to understand and participate in the board proceedings. l. On 13 February 1980, he underwent a medical examination and the examiner stated he was qualified for separation. m. Consistent with the chain of command recommendations, on 4 March 1980, the separation authority approved the applicant’s request for discharge. He would be reduced to the lowest grade and issued an Under Other Than Honorable Conditions Discharge Certificate. n. He was discharged on 1 April 1980. His DD Form 214 shows he was discharged under the provisions chapter 10, AR 635-200, administrative discharge conduct triable by court-martial. His separation code is JFS for the good of the Service, in lieu of court martial. His characterization is under other than honorable conditions. He completed 3 years, 7 months and 27 days of active service. He had 48 days lost time from 9 May 1979 to 3 February 1980. 4. By regulation AR 635-200, chapter 10 an individual 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. The request may be submitted at any time after charges have been preferred. An under other than honorable discharge certificate will normally be furnished an individual who is discharged for the good of the service 5. By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. 6. The RE Code associated with this separation is RE-3B which applies to persons who have lost time during their last period of service; ineligible for enlistment unless a waiver is granted in accordance with AR 601-210, (Regular Army and Reserve Enlistment Program) paragraph 3-8. 7. 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 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 multiple AWOL offenses, some covering a lengthy period of time, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of separation was appropriate. However, the Board did note the administrative note reflected below by the analyst of record which shows that applicant had a prior period of honorable service which is not currently depicted on his DD Form 214. For that reason, the Board recommended making that change to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X 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 10 November 1975 until 8 May 1979.” 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s records shows his DD Form 214 omitted administrative entries in the Remarks block. As a result, amend the DD Form 214 by adding in item 18 the entry “continuous honorable service 751110 to 790508.” 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, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable discharge) states 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 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. The member may have had frequent nonjudicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or discharge under less than honorable conditions. When member’s service is characterized as general, except when discharge by reason for unsuitability, misconduct, or security, the specific basis for such separation will be included in the member’s military personnel record. c. 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. 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 (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) AR20170011115 5 1