ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 16 October 2019 DOCKET NUMBER: AR20170011147 APPLICANT REQUESTS: upgrade of his under other than honorable conditions to general/under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release from Active Duty) 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 (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. The applicant states he went absent without leave (AWOL) when his mother was diagnosed with brain cancer and was dying. He had accumulated leave time, but he was refused by his then First Sergeant so he left without permission. Other than that, he believes he was a good Soldier and would like his petition for a discharge upgrade to be considered 3. The applicant provides: * DD Form 293 dated 5 April 2017 * DD 214 (Certificate of Release from Active Duty) dated 1 April 1981 which shows his character of service as under condition other than honorable. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 6 August 1979. He was stationed at Ft Campbell, KY. b. DA Form 2-1 (Personnel Qualification Record) shows in block 21 (Lost Time) absent without leave (AWOL) from 11 November 1979 thru 7 December 1979 (27 days) and 7 April 1980 thru 10 February 1981 (312 days). c. He accepted non judicial punishment (NJP) under Article 15 on 14 January 1980 for without authority, being absent from his unit. d. DA Form 2-1 shows block 35 (Principal Duty) he was dropped from the rolls on 6 May 1980. e. On 20 May 1980 DD Form 458 (Charge Sheet) shows he was, without authority absented himself from his unit and did remain so absent. f. DA Form 2-1 shows (block 35): * 11 February 1981 the applicant was in confinement at Fort Dix, New Jersey * 25 March 1981, reassigned to the US Army separation transfer point g. Orders 084-79 dated 25 March 1981 discharged him from the regular Army component 1 April 1981. h. A thorough review of the applicant’s service record reveals the record is void of documentation regarding the applicant voluntarily requesting discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separation), chapter 10 (administrative discharge conduct triable by court martial), his acknowledgement of his rights or chain of command recommendations. i. 1 April 1981, a letter from the separation authority notified the applicant he was separated in accordance with Army Regulation 635-200. j. He was discharged on 1 April 1981. His DD Form 214 (Certificate of Release from Active Duty) reflects he was discharged in accordance with AR 635-200, Chapter 10 (administrative discharge conduct triable by court martial) with an under conditions other than honorable character of service. He completed 8 months, and 25 days with time lost from 11 November 1979 to 7 December 1979 and 7 April 1980 to 10 December 1981. 5. There is no indication he applied to the Army Discharge Review Board within that board's 15-year statute of limitations. 6. By regulation, AR 635-200, in part states: a. 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. b. Item 24 (Character of Service), Correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation. The character of service must be one of the seven designations: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct dishonorable, dismissed or uncharacterized. c. Item 28 (Narrative Reason for Separation). This is based on regulatory or other authority and can be checked against the cross reference in Army Regulation 635-5-1. 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 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 honorable service completed prior to a lengthy period of AWOL, 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 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 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability. c. 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. d. item 24 (Character of Service), Correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation. The character of service must be one of the seven designations: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct dishonorable, dismissed or uncharacterized e. item 28 (Narrative Reason for Separation). This is based on regulatory or other authority and can be checked against the cross reference in Army Regulation 635-5-1. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011147 4 1