ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20170013128 APPLICANT REQUESTS: an upgrade of his discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * VA Form 21-4138 (Statement in Support of Claim) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of the Army (DOA) Radio license * Copy of Amateur Radio License * Copy of Department of the Army Identification Card * Copy of Federal Emergency Management (FEMA) Certificate * Copy of acceptance letter as a member of the Salvation Army Team Emergency Radio Network (SATERN) 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 that his discharge is currently under other than honorable conditions with a separation code of KFS (good of the service-in lieu of court-martial). His chain of command was not helping him with his situation and he took leave to find his daughter. When he could not, it took him longer than 30 days. 3. The applicant provides VA Form 21-4138 which states that while in Germany, his ex-wife left without notice and took his daughter around September. His child was just a baby. His ex-wife, had alcohol problems and he was very concerned for the safety of his child. He was given 30 days leave to fly back to the states to find and relocate his daughter. He flew back to Fayetteville where he knew all of her family was residing to attempt to find his daughter. When he got there, he was going any and everywhere to locate them. Her family would not assist him at all and he resulted in asking friends that also knew her where he could find them. About a week after getting no-where, he called the police to submit a report that they were missing. The police assured him that they would help, but it went to no avail. After continued searching, he realized that his 30 days of leave was due to expire. Upon the approach of the 30 days, he called his chain of command to let them know of the situation and how it was taking him longer than expected to find his daughter. The chain of command did not help, in fact, they just told him to come back and that it was nothing else that they can do for him at that time. He stated that although, he knew his duties as a Soldier; a father always comes first and that he had to find his child. Frustrated with the entire situation, he went to the One-Stop at Fort Bragg. His next orders was to go there and he was two months shy of leaving Germany. At the One-Stop, they stated that if he had already had the official orders in hand, they would reassign him right then and there at that time. After 2-3 weeks, a mutual friend called to tell him that they had seen his ex-wife working at the local TMC 11 on base at Fort Bragg. Upon receiving the information, he was able to go forward and find his daughter and had her relocate back to Florida where he knew she would be safe. Once everything was settled, his unit in Germany had already dropped him from their report. He took it upon his own to go to Fort Dix to tum himself in and face his consequences. At Fort Dix, they called Germany to see if he had charges pending, when they told them no, he was then discharged from the service. He understand fully the rights, duties, and responsibilities that he had as an American Soldier. He also believe that his discharge was unjust due to the fact not only did he let his unit in Germany know of the situation, but he kept them informed the entire time. He believes that there was no consideration when he addressed them about his daughter's well-being. He was never a bad or disorderly Soldier while in the Army. He served 12 years before this incident occurred with no blemishes, reprimands, article 15s or anything of that nature. He also had other honorable discharges prior to this incident as well. He ask that his discharge be upgraded. He has also provided statements to help support his claim. He is presently still supporting the military, as he volunteer with military organizations and more. He is extremely proud to have served and he has also provided awards, decorations, and current work since he has been out. If any further information is needed, please contact him directly or send all letters to the mailing address provided. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army (AR) on 3 October 1978. b. He reenlisted in the (RA) on 3 April 1981. c. He reenlisted in the RA on 17 April 1987. d. He served in Germany from 14 December 1987 to 14 April 1991. e. Court Martial charges were preferred on 4 October 1990. His DD Form 458 (Charge Sheet) indicates that he was charged with one specification of absent without leave (AWOL) on or about 2 September 1990 with the return date left blank by his immediate commander. f. Court Martial charges were preferred on 10 January 1991. His DD Form 458 indicates that he was charged with one specification of AWOL on or about 2 September 1990 to 4 January 1991. g. On 10 January 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged: * He was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * He understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * He acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits * He acknowledged he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * He stated that under no circumstances did he desire further rehabilitation or to perform further military service * He elected not to submit a statement on his own behalf * He requested a delay in processing court-martial charges h. On 28 January 1991, his immediate commander recommended separation under the provisions of AR 635-200, chapter 10 (discharge for the good of the service) with an Under Other Than Honorable Discharge Certificate. i. On 28 May 1991, the separation authority approved separation for the good of the service with reduction to the lowest grade. j. He was discharged on 19 June 1991. His DD Form 214 shows he was discharged under the provision of chapter 10 of AR 635-200 with an under other than honorable conditions discharge. Block 28 (Narrative Reason for Separation) shows for the good of the service in Lieu of court-martial. Block 26 (Separation Code) shows KFS (Good of the Service, in lieu of court-martial). It also shows he served 12 years, 4 months and 13 days of active duty service with 96 days of lost time. He had continuous honorable active duty service from 3 October 1978 to 16 April 1987. He was awarded or authorized: * Army Commendation Medal (2nd Oak Leaf Cluster) * Army Achievement Medal * Good Conduct Medal (4th Award) * Noncommissioned Officer Professional Development Ribbon (2 Oak Leaf Clusters) * Army Service Ribbon * Overseas Service Ribbon * Expert-Marksmanship Qualification Badge with Rifle Bar (M16) * Sharpshooter-Marksmanship Qualification Badge Hand Grenade * Parachutist Badge * Master Parachutist Badge * Senior Parachutist Badge 4. The applicant’s record is void of evidence that show he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation. 5. By regulation, AR 635-200, Chapter 10 of this regulation states a person who has committed an offense or offenses, the punishment for which, under the uniform code of military justice and the military court martial, 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. The discharge request may be submitted after court-martial charges are preferred against the Solider, or, where required, after referral until final action by the court-martial convening authority. 6. 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 warranted. Based upon the lengthy period of honorable service that proceeded any misconduct, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. Additionally, the Board noted that the applicant had a prior period of honorable service which was not currently reflected on the applicant’s DD Form 214 and recommended be completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 2. Prior to closing the case, The Board determined the applicant had a prior period of honorable service not currently reflected on the DD Form 214. 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 3 October 1978 to 16 April 1987.” 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 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 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 this regulation states a person who has committed an offense or offenses, the punishment for which, under the uniform code of military justice and the military court martial, 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. The discharge request may be submitted after court-martial charges are preferred against the Solider, or, where required, after referral until final action by the court-martial convening authority. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 4. 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. ABCMR Record of Proceedings (cont) AR20170013128 0 5 1