ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170013759 APPLICANT REQUESTS: an upgrade to his under conditions other than honorable 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 told his chain of command that his wife had a nervous breakdown, was hospitalized and his two children, who were both less than five years old were left unattended and he needed to go home and stabilize the situation. Notarized paperwork was submitted to his command showing his wife X__ was clearly hospitalized. Dr. X__ X__ from Unity Maine and Francis Grignon the first selectmen of the town of Burnham, Maine both submitted a letter describing X__'s medical condition and the effects on her family. His superiors within his chain of command denied his request and told him that there were plenty more women around every turn and they did not listen to his concerns. So he chose his family and was put out of the military with an under other than honorable discharge. b. When he applied for veteran affairs (VA) benefits, he told them how he ended up leaving the military and they felt he should document the situation and turn it in on this form for a reevaluation of his discharge. His record should show the documented notarized forms that were submitted and spoken of during the discharge period. 3. A review of the applicant’s service record shows: a. Having had prior service in the Army Reserve Delay Entry Program, he enlisted in the Regular Army on 1 December 1976. b. Two DA Form 4187 (Personnel Action), changed his duty status: * 2 September 1977, from present for duty to absent without leave (AWOL) * 1 October 1977, from AWOL to dropped from roll (DFR) c. The commander submitted a Commander’s Report of Inquiry/Unauthorized Absence on the applicant on 2 September 1977, stating that the possible contributing factor that caused him to go absent without leave (AWOL) was due to the disapproval of hardship discharge. d. DA Form 3835 (Notice of Unauthorized Absence from United States Army), dated 1 October 1977, shows that the applicant was AWOL 2 September 1977 and DFR on 1 October 1977. e. The next of kin Mrs. X__ was notified by letter on 1 October 1977 that the applicant had been AWOL since 2 September 1977 and that he had been DFR of the organization. He had been administratively classified as a deserter from the Army. Civilian and military law enforcement agencies have been notified of his status and requested to apprehend him. She was advised if she knew of his whereabouts to urge him to return to military control without delay. f. The applicant underwent a medical examination on 2 October 1977 for separation and the examiner stated the he was qualified for separation. g. His record also contains a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), which shows he was apprehended by the Federal Bureau of Investigation on 1 October 1977 and returned to military custody. h. DA Form 4187, dated 21 December 1977 reported the applicant from DFR to returned to military control at Augusta, Maine on 1 December 1977 and apprehension efforts had been terminated. i. Court martial charges were preferred on 2 September 1977. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave on 2 September 1977. j. Court martial charges were preferred on 7 December 1977. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave from 2 September 1977 to 1 December 1977. k. He consulted with legal counsel on 9 December 1977, and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the Service. 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 l. On 22 December 1977, consistent with the chain of command recommendations, the general court martial convening authority approved the applicant’s request for discharge under the provisions of AR 635-200, chapter 10. He would be reduced to the lowest grade and issued an under other than honorable conditions discharge certificate. The reason authority for discharge will be shown as Separation Program Designators (SPD): KFS. m. He was discharged from active duty on 13 January 1978, under the provisions of AR 635-200, chapter 10, in lieu of court martial – for the good of the Service. His characterization of service is under conditions other than honorable. n. His DD Form 214 (Report of separation from Active Duty) shows he completed 10 months, and 14 days of active service this period, and 4 months, and 10 days prior inactive service. He had 90 days of lost time from 2 September 1977 to 30 November 1977. 4. Soldiers separated under AR 635-200, paragraph 10, in lieu of trial by court martial are assigned the Separation Code KFS in accordance with AR 635-5-1 (Personnel Separations – Separation Program Designators). 5. 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. 6. By regulation, a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 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 there is sufficient evidence to warrant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. The applicant was remorseful during separation procedures and demonstrates he understands his actions were not that of all Soldiers. His command at that time corroborated his contention Family concerns mitigated his AWOL. The Board agreed the misconduct does not warrant an upgrade to an honorable discharge; however, an Under Honorable Conditions (General) characterization is appropriate based upon the recorded misconduct. 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: 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 him a DD Form 214 for the period ending 13 January 1978 showing his character of service as under honorable conditions (General). 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. AR 635-200 in effect at the time governed the separation of enlisted personnel prior to expiration term of service to meet the needs of the Service and its members. a. Paragraph 13a (Honorable discharge) 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. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. b. Paragraph 13b (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 a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record. c. Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013759 5 1