ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20170014969 APPLICANT REQUESTS: reconsideration for upgrade of discharge from under other than honorable to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement, dated 17 August 2017 * DD Form 214 (Certificate of Discharge from Active Duty) * character statement from Mr. XX, dated 20 August 2017 * character statement from Mr. XX, dated 22 August 2017 * character statement from Miss XX, dated 23 August 2017 * character statement from Mr. X, (no date) 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 AR20090000247 on 28 April 2009. 2. The applicant states, in effect, he entered the service to be a linguist. Upon arriving, he was told he would no longer be a linguist and would be changing his military occupational specialty (MOS). He believes the change was an injustice done to him. Additionally, the applicant states he understands the reasons for his termination from service. He shares he was young and did not fully accept the military. For the past 27 years, he has had to live with his dishonor. He believes he had turned his life around and requests he character of service be upgraded. 3. The applicant provides: a. A self-authored statement, detailing his reason for going absent without leave (AWOL) was because he signed up for his MOS to be a linguist in Greece, because he speaks, reads, and writes the language, but due to an involuntary change in his MOS, he was trained in the MOS of 11M (Fighting Vehicle Infantryman), driving Bradley Fighting Vehicles. He felt he was made to do a job that he didn’t want to do. He was wrong for leaving had has no valid excuse for doing so. He has changed his ways through working on the 12-steps of recovery, made an active change in his attitude and ideas, and no longer does what feels good, but what is right. He has morals and principles today and if he had a chance to do the whole military thing over again, he would do it differently, the right way. He ends his statement by adding he is not the same man he was 34 years ago and to please assist him in his endeavor b. A copy of his DD form 214, period ending 29 August 1990, as proof that he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 10 (For the Good of the Service in lieu of Court-Martial), with an under other than honorable conditions character of service. c. A character statement from Mr. XX, provides he met the applicant in 2010. Mr. EK shares his friendship with the applicant has been one of a kind. They both have been going through recovery together since the beginning and he finds the applicant to be a very strong individual. Mr. EXXK states so many people would not be there (in recovery) today without the applicant’s compassion and willingness to help others. d. A character statement from Mr. XX, provides he met the applicant in of 2008. They have remained friends to present day. During the course of their friendship, they have been roommates and shared recovery experiences. Mr. XX shares most of their group have had their moments with life’s difficulties, the applicant has had his share, but always found a way to get to workable solutions. Mr. XX states the applicant is currently in a 12-step program of recovery and service to others and is also a productive member of society. They talk regularly and share life’s challenges with each other. The applicant has always been a good and loyal friend, and believes the applicant is heading on the right path, based on the number of years he has known him. Mr. XX ends by adding the applicant is very committed to change all of the negative behavior and surrendering to a new way of life, one of character and morality. e. A character statement from Miss XX, provides she has known the applicant for approximately 2 months. In her opinion, he has been an extremely positive influence to her and others within their community. Miss XX looks forward to getting to know the applicant better and see how his influence effects the world around him. f. A character statement from Mr. X, provides the applicant is a productive member of society. He is described as a very smart guy and deserves the best. He possesses sweet and funny character traits, always knows what he is doing, and does things right. Mr. X states the applicant is always there if someone needs to talk. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 8 May 1989 at the rank of private first class/E-3. b. On 29 June 1990, DD Form 458 (Charge Sheet), shows court martial charges were preferred against the applicant for one specification of absent without leave from 28 November 1989 to on or about 20 June 1990. c. On 29 June 1990, the applicant consulted with counsel and was advised of the contemplated trial by court-martial for an offense punishable by a bad conduct or a dishonorable discharge. Subsequent to that, he requested discharge under the provisions (UP) of chapter 10, (for the good of the service – in lieu of trial by court-martial) AR 635-200. He also acknowledged the following: * he understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under Federal and State law * understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge d. On 10 July 1990, his immediate commander recommended discharge under the provisions of chapter 10 of AR 635-200 and issuance of a discharge under other than honorable conditions. The applicant’s intermediate commander endorsed the recommendation for discharge the same day. e. On 16 July 1990, the separation authority approved discharge in lieu of trial by courts-martial. He directed the applicant be furnished an under other than honorable conditions discharge and reduced to private/E-1. f. On 29 August 1990, he was discharged, in the rank of private/E-1. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, with the narrative reason for separation as for the good of the service in lieu of trial by court-martial. The applicant received an under other than honorable conditions character of service. He served 8 months and 26 days of creditable active service. g. He was awarded the Army Service Ribbon, Marksman Qualification Badge with Rifle Bar, and Sharpshooter Qualification Badge with Grenade Bar. h. ABCMR Docket Number AR20090000247, dated 28 April 2009, Record of Proceedings (ROP), where he requested an upgrade of his discharge and correction of his rank/grade from private/E-1 to private first class/E-3 on his DD Form 214. He stated he enlisted in the Regular Army as a linguist. However, the Army breached his contract by using him as an Infantry Soldier. The Board determined the evidence of record showed the applicant enlisted for an Infantry MOS and a cash bonus. There was no indication or evidence in his enlistment contract that he was promised and/or guaranteed any other options. The Board denied the applicant’s request. 6. By regulation, (AR 635-200) sets forth the basic authority for the separation of enlisted personnel. 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. 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 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 short term of honorable service completed prior to the lengthy AWOL offense which resulted in the applicant’s separation, 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: 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). 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 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 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. a. Paragraph 3-7a provides an honorable discharge is a separation with honor. 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b provides a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member 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. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20170014969 5 1