ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 3 October 2019 DOCKET NUMBER: AR20170013002 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge 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) * Self-authored Statement * Letter from President Obama * Copy of Marriage License * Birth Certificates of his Children * Certificates of Completion * Copy of Associates Degree * Phi Theta Kappa Certificate 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 in a self-authored letter: a. The livelihood of his family is in jeopardy. At the age of seventeen, he joined the U.S. Army in 1983. After serving his country (faithfully) for approximately twenty- nine months, he went home to visit and never returned. It was extremely stupid he admits. He was a young boy (experiencing the frivolities of youth) and the lack of parental guidance did not help the matter. He is a fifty-one year old retired Firefighter/Advanced Emergency Medical Technician. He joined the department in September of 2004 and opted for an early pension in July of 2015. Additionally, he is a husband and father of four children (three biological and one adopted niece). His objective is to return to the career that he loved; public service is his PASSION! b. Until now, his military discharge has not been a hindrance; however, as of 2006 anything less than an Honorable Discharge automatically disqualifies you from law enforcement or public service. He is too "mature" to start a new career and would truly, truly love to return to the fire department. Being totally honest, financially, he is compelled to return to work. He is asking for assistance in this endeavor by upgrading his current discharge to an honorable. He does not have a criminal record (not even a speeding ticket). Over three decades have passed since the inception of his military commitment. He acknowledges his mistake and is simply seeking redemption. Please do not allow this to become his legacy. He has taken the liberty of attaching some of his accolades. 3. The applicant provides: a. A letter from President Obama, which states, “Thank you for your thoughtful words. Each letter I receive from Americans like you reminds me of what is best about our country, and' these messages motivate me to continue working to ensure that spirit is reflected in our Government. From putting Americans back to work to expanding access to medical care, my Administration continues to take bold action to do what is right for our Nation. We have enacted the most comprehensive financial reforms in decades, rescued and helped retool our auto industry, expanded student aid to millions of young people, helped level the playing field for working women, and made the largest investment in clean energy in our history. Because of the courageous acts of our service members, we have been able to end the war in Iraq and take down Osama bin Laden. We have also made historic commitments to provide for our troops as they return home. Securing our country's future will take time, but I will not stop working to rebuild the kind of America where everyone gets a fair shot, everyone does their fair share, and everyone plays by the same rules. The achievements we have won must be matched by a commitment to address the many challenges that remain. When we join together in pursuit of a better America for all- whether by offering our time volunteering in our communities or simply lending a hand to someone in need-there is no limit to what we can accomplish.” b. A copy of his marriage license and birth certificates of his children. c. A host of certificates of achievement, which range from his achievements with the fire department, his educational achievements and his fraternity certificate. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 20 July 1983. b. On 5 February 1985, he accepted non judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for departing his unit in an absent without leave (AWOL) status on 10 January 1985 and did not return to military control until 10 January 1985. His punishment included a reduction in rank to private/E-1. c. On 5 March 1985, he departed his unit in an AWOL status, was dropped from the rolls on 4 April 1985 and was apprehended by civilian authorities on 25 April 1990 for driving while intoxicated. His status changed from confined civilian authorities to present for duty on 26 April 1990. d. According to his DD Form 458 (Charge Sheet), 9 May 1990, court-martial charges were preferred against him for one specification of AWOL from 5 March 1985 to 26 April 1990. e. On 9 May 1990, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under UCMJ and the possible effects of a bad conduct or dishonorable discharge if the request is approved and of the procedures and rights available to him. f. Following consultation with counsel, he requested discharge under the provisions 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, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions * he acknowledged he understood 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 * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf g. On 15 May 1990, his chain of command recommended he be discharged for the good of the service with an under other than honorable conditions discharge. h. Consistent with the chain of command's recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge. i. His DD Form 214 shows he was discharged on 25 June 1990 for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions. He completed 1 year, 9 months and 3 days of net active service, with lost time from 23 January 1985 to 4 February 1985 and 5 March 1985 to 25 April 1990. 5. On 27 October 1993, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 6. By regulation a soldier who has committed an offense or offenses, the punishment for which, under the UCMJ and the MCM, 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. 7. The Board should 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 for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, his civilian apprehension, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation and found the post- service achievements, without additional character references, provided by the applicant insufficient to support a clemency determination. Based on a preponderance of evidence, the Board determined that the characterization of service received at the time of separation was appropriate. The Board found no error or injustice. 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. X CHAIRPERSON Signed by: 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 3-7a provided that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to Active Duty. c. Paragraph 10 states that a soldier who has committed an offense or offenses, the punishment for which, under the UCMJ and the MCM, 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The provisions of RCM 1003(d), MCM 1984, do not apply to requests for discharge per this chapter unless the case has been referred to a court-martial- authorized to adjudge a punitive discharge. 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. A soldier who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge for the good of the Service. 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