ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 May 2019 DOCKET NUMBER: AR20170012097 ON BEHALF OF THE APPLICANT, COUNSEL REQUESTS: reconsideration of the applicant's request for an upgrade of his discharge. As new issues, counsel also requests: * removal of all records of court-martial charges from the applicant's military records * removal the discharge in lieu of trial by court martial * restore the applicant's rank to Sergeant (E-5) * reinstate the Voluntary Separation Incentive (VSI) approval * order the Army Defense and Accounting Service (DFAS) to comply with the VSI approval, to include interest form 3 March 1995 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * affidavits from applicant and spouse * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), 30 July 1980 - 29 August 1984 * DD Form 214, 3 March 1986 - 15 July 1996 * VSI (Voluntary Separation Incentive) application * Commander's recommendation letter * Recommendation memorandum for Active Guard Reserve (AGR) Program * Human Resource Command letter * DA Form 137 (Installation Clearance Record) 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 AR20150018381 on 30 May 2017. 2. Counsel states, in effect, the applicant was unceremoniously and unfairly stripped of his honorable service characterization and tossed out of the Army. Further noting that, after experiencing the injustice, it is understandable why the applicant became disillusioned and turned his back on the Army. 3. Counsel provides: a. Affidavit of the applicant states he served with honor in both the Marines and the Army, reenlisting twice in 1991 and 1994 (1) He deployed during the first Gulf War. He received several awards for his service and he was consistently rated as fully capable and among the best. He was so angry for the way he was treated as he transitioned out of the Army, he forced himself to forget his military career in order to cope and, for his mental health, he buried the indignity. He submitted his application for the VSI/SSB program in 1994 and was approved in the winter of 1995. His chain of command supported his request. (2) He agreed to enlist in the Army Reserve, while he was still out-processing. He received signatures from every office on the out-processing clearance record signed off and was told he was good. He believed that he was properly checked out and discharged based on the fact that he received his final orders and the Army paid for his flight home. He does not understand to this day how the Army justified placing him in an AWOL (absent without leave) or desertion status. He was never contacted via mail or phone call from any Army personnel, even though they knew his home of record. (3) He was placed under military arrest at his civilian job more than a year later; he was shocked, humiliated, and totally confused. He was ordered to go to Fort Sill, immediately placed on a plane, and once he arrived, he had to walk to the post from the airport. He signed a bunch of paperwork once he arrived to Fort Sill and was told, in order for him to go back home right away, he needed to accept a discharge in lieu of a court-martial. He did not speak to counsel nor was counsel available, which made him so mad that he just wanted to go home. He did what he was told and was immediately put on a plane going back home. He understood that the Army had taken away his honorable discharge, his pay, and there was nothing he could do about it. He would like to have his rank restored to E-5, his characterization of service upgraded to honorable, expunge any negative references to the alleged AWOL or desertion, and to be paid his voluntary separation, pay plus interest. b. Affidavit from the applicant's spouse who states she did not know her husband during his time in the military. However, for most of their relationship, he refused to discuss the topic of his military service. (1) It was not until sometime in 2013 when her husband's friend stayed the night and the next morning made a comment alluding to how it was a shame what the Army did to her husband. The encounter and comment led her to bring the subject up directly with her husband, who was very reluctant to discuss it with her or anyone else. Her husband eventually told her he served his time admirably and that he had voluntarily agreed to separate from the Army with a severance bonus; however, the Army failed to pay him the bonus and he was given a negative discharge. (2) Her husband is clearly still very upset about how the Army treated him. Her husband is a good man, works hard for his family, and is proud to his time in the military, but is deeply hurt by the way he was mistreated. Further stating that the Army needs to do right in this situation and restore honor to her husband's military record. 4. Review of the applicant's service records show: a. Having had prior service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 5 March 1986. He reenlisted on 18 November 1991 and 31 March 1994. He was advanced to sergeant (SGT)/E-5 on 1 November 1990. b. The applicant accepted nonjudicial punishment (NJP) on 2 March 1993 for unlawfully striking a child under the age of 16 on the legs with a belt. c. On 6 February 1995, the U.S. Total Army Personnel Command (PERSCOM) (now known as the U.S. Army Human Resources Command) approved his separation under the Voluntary Early Release Program with VSI/SSB contingent upon having had at least 5 years of continuous active service immediately prior to separation. d. On 15 February 1995, the U.S. Army White Sands Missile Range published Orders 46-04 ordering his discharge from active duty effective 1 May 1995. The orders state he was not entitled to separation pay under Title 10 U.S. Code (USC) §1174. Payment of an SSB was authorized under the VSI-SSB [10 USC §1174a.] e. The applicant was authorized permissive temporary duty (PTDY) from 26 February 1995 to 16 March 1995 and transition leave from 17 March 1995 to 1 May 1995. f. On 24 February 1995, he enlisted in the U.S. Army Reserve (USAR) for 3 years. His separation orders were subsequently amended to show a transfer to a USAR unit, with a requirement to report to his unit within 30 days of his discharge from active duty. g. It appears the applicant was pending an investigation. The disposition of such investigation is unknown. However, on 8 March and 16 March 1995, two DA Forms 268 (Report to Suspend Favorable Person Actions (Flag)), were initiated against the applicant. h. DA Form 4187 (Personnel Action), dated 19 April 1995, addressed to PERSCOM, reflects the applicant's duty status changed from active duty status to AWOL, with an effective date of 14 March 1995. In addition, it requested the applicant be removed from the FY95 VSI/SSB list effective immediately and informing them of the applicant being flagged for adverse action; thus, no longer eligible for the program. i. Electronic personnel action, dated 25 April 1995, reflects the applicant's duty status changed from AWOL to Dropped from Rolls (DFR), with an effective date of 15 April 1995. j. DD Form 458, Charge Sheet, dated 24 April 1995, shows court-martial charges were preferred against the applicant for absenting himself from his unit without authority and with intent to remain away therefrom permanently on or about 14 March 1995. k. His service record contains a handwritten note, dated 18 September 1995, with two additions which state: the applicant did not report for his USAR duty; his USAR contract was revoked because the Soldier had forged signatures on his Clearance Record; and the Soldier was removed from the early separation program. l. It appears a member of the U.S. Army White Sands Missile Range Adjutant General's Corps added a note to the above stating: * the applicant had been approved for PTDY and leave 26 February - 1 May 1995 * the applicant was flagged on 8 March 1995 * he was declared AWOL on 14 March 1995 * his VSI/SSB was removed on 19 April 1995 * his separation orders had not been revoked * PERSCOM had not responded to the SSB removal m. On 17 January 1996, his discharge orders were rescinded and on 19 January 1996, by memorandum, HRC stated the applicant's request for withdrawal from the VSI/SSB was approved. n. His service record also contains a second note, dated 1 February 1996, stating the applicant's VSI/SSB separation approval was revoked. o. DD Form 616, Report of Return of Absentee, reflects the applicant was apprehended by civil authorities and returned to military control on 13 May 1996. p. DD Form 458, Charge Sheet, dated 16 May 1996, shows court-martial charges were preferred against the applicant for one specification of AWOL from 14 March 1995 until on or about 13 May 1996. q. On 16 May 1996, 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, 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 lieu of trial by court-martial. In his request for discharge: (1) 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. (2) 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. (3) he was advised he could submit any statements he desired in his own behalf. The applicant did not submit any statements. r. The separation authority approved the applicant's request for discharge on 25 June 1996, under the provisions of Army Regulation (AR) 635-200, chapter 10, in lieu of trial by court-martial, and directed that he be discharged under other than honorable conditions. s The applicant was discharged on 15 July 1996. His DD Form 214 shows he completed 9 years, 2 months, and 5 days of creditable service with 4 years of prior active duty service. He had lost time from 15 March 1995 through 12 May 1996. 5. On 30 May 2017, the Board considered his petition for an upgrade of his discharge but found no evidence of an error or injustice. The Board denied his request. 6. By regulation (AR 635-200), chapter 10 of that regulation provides for 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, an under other than honorable conditions discharge was considered appropriate at the time. When a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. 7. The ABCMR corrects military records. If as a result of this correction, a financial entitlement or a debt is created, the Board's decision is transmitted to DFAS for collection or payment. For any alleged entitlement to unpaid pay and allowances, a service member claiming additional pay and allowances previously accrued but not paid, has the burden of proving that he/she was not paid the pay and allowances claimed. Such requests are addressed directly to DFAS. 8. By regulation (AR 600-8-104), a separation packet and allied documents are filed in the member's service records. 9. A member loses the VSI incentive when he/she was involuntarily separated for a reason considered to be his fault. 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 of which were extremely lengthy in duration, as well as the one offense for striking a child, 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. ADMINISTRATIVE NOTE(S): Not Applicable 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), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. 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. 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. 3. The National Defense Authorization Act of FY 1992, to assist in maximizing voluntary separation during the drawdown period of military forces, established a separation incentive called the VSI. The VSI pays an annual annuity payment equal to 2.5 percent of the Soldier’s annual basic pay at separation from the active Army multiplied by the Soldier's number of years of service and paid for twice the number of years the Soldier had served at the time of separation. Soldiers approved for VSI must be appointed, enlisted, or transferred to the Ready Reserve for the entire period that they receive VSI annual payments. A VSI recipient must remain eligible for retention or reenlistment in the Ready Reserve by maintaining Army weight standards, completing a military physical examination every five years, keeping their residence address and phone number updated, and responding to all official written and telephonic correspondence. Enlisted VSI recipients must reenlist at the end of each term of service until their mandatory removal date. a. If the VSI recipient fails to remain eligible or reenlist, the Soldier will be separated from the Reserve and the VSI annual payments will be discontinued. If a VSI recipient becomes ineligible to continue to serve in the Ready Reserve, through no fault of his or her own, the Soldier will be transferred to the Retired Reserve and continue to receive annual VSI payments for the remaining period authorized for VSI. At MRD, the VSI recipients will automatically be transferred to the Retired Reserve and continue to receive annual VSI payments for the remaining period authorized for VSI. b. The following are situations in which an enlisted Soldier would lose his/her Reserve affiliation: * The Soldier failed to maintain a valid enlistment contract * The Soldier failed to maintain a valid address * The Soldier failed to respond to official correspondence * The Soldier failed to maintain a valid physical examination * The Soldier was involuntarily separated for a reason considered to be his fault 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management), Table 2-1, requires Retired/Separations Activities, Divisions, and Transition Centers to file all personnel and administrative documents that require referral to the Army Military Human Resource Record (AMHRR) and/or Interactive Personnel Electronic Records Management System (iPERMS). 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