ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20170013884 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions 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 he believes he had been humiliated enough, especially when he called his first sergeant and asked them to come get him so he could return. They waited until he was arrested. His wife was having a difficult child birth and that’s why he had to leave. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 4 January 1980. b. Two DA Form 4187 (Personnel Action), reported him absent without leave (AWOL) from 18 January 1980 and on 16 February 1980, he was dropped from roll (DFR), DA Form 4187. c. The next of kin Ms. X____ was notified by letter on 20 February 1980 that the applicant had been AWOL since 18 January 1980 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. d. DA Form 3835 (Notice of Unauthorized Absence from United States Army), dated 3 March 1980, shows that the applicant was AWOL as of 18 January 1980 and DFR on 16 February 1980. e. His DD Form 458 (Charge Sheet) indicates court martial charges were preferred: * 12 March 1980, for one specification of being AWOL on 18 January 1980 * 20 May 1980, for one specification of being AWOL from 18 January 1980 to 7 May 1980 f. The applicant underwent a medical examination on 19 May 1980 for separation and the examiner stated the he was qualified for separation. On 20 May 1980 he underwent a mental evaluation and the examiner stated that the applicant had the mental capacity to understand and participate in a board proceedings and is psychiatrically cleared. g. DA Form 4187, dated 20 May 1980 reported the applicant attached to military control at Fort Knox, KY on 7 May 1980 and DA Form 3836 (Notice of Return of US Army Member from Unauthorized Absence) shows that apprehension efforts were terminated. h. He consulted with legal counsel on 20 May 1980 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 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 i. He submitted a statement on his own behalf on 21 May 1980, that stated he went through the 10th grade and the only reason why he joined the Army was because he didn’t have a job. He wanted out of the Army because his wife needed him at home due to complication with their third child and she needed someone to help her with them. j. On 8 August 1980, 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, for the good of the Service. He would be reduced to the lowest grade and issued an under other than honorable conditions discharge certificate. k. On 9 September 1980, he was discharged from active duty under the provisions of AR 635-200, chapter 10, administrative discharge – conduct triable by court martial (in lieu of court martial). His Separation Program Designators (SPD) JFS. His characterization of service is under other than honorable conditions. His DD Form 214 shows he completed 4 months, and 17 days of active service, and he had 112 days of lost time. 4. Soldiers separated under AR 635-200, paragraph 10, in lieu of trial by court martial are assigned the Separation Code JFS 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the short term of service completed prior to multiple AWOL offenses, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from those events leading to his discharge, the Board concluded that there was insufficient evidence to show an error or injustice which would warrant making a change to the characterization of service. 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 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. ABCMR Record of Proceedings (cont) AR20170013884 4 1