ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170015321 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his discharge from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Self-Authored Statement * Letter of Commendation, dated 28 June 1985 * Certificates of Achievement, dated 15 April 1986, 18 September 1987 * U.S. Army Infantry School Airborne Course Completion Certificate * Letter of Appreciation, dated 22 April 1987 * Honorable Discharge Certificate, dated 18 October 1987 * Army Good Conduct Medal Certificate * Department of Veterans Affairs Special Contribution Award, dated 28 April 2004 * Veterans Canteen Service Special Contribution Award dated 12 October 2004 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 AR20070007132 on 8 November 2007. 2. The applicant states, in effect: a. He entered active Army on 12 February 1985 with aspirations to make the military a career. He graduated in the top 10% of his training class and was promoted three ranks within 10 months, showing his leadership skills while stationed in Korea. Upon assignment to Fort Bragg, NC, he graduated from paratrooper school and he received a letter of appreciation from the U.S. Army Reserve Officer Training Corps (ROTC) Group Instructor for providing outstanding support. He received 2 certificates of achievement and an Army Good Conduct Medal. b. He was assigned to his unit’s weapons room, made improvements there and ensured his unit received a 100% pass rate on inspections. After a month of his assignment, the applicant discovered an M-60 weapon without a serial number. He informed his chain of command, but was informed by one of his officers that the company commander wanted him to be removed from the arms room to reduce the possibility of the applicant shipping weapons to Puerto Rico. He interpreted his commander’s statement to have a completely racist tone. He was offered an option to reenlist with his choice of assignment. He was informed that most Soldiers reenlisting in his career field were going to Italy. Time passed and he was never sent to Italy. c. Upon the birth of his son, his company commander would not grant him leave to go home. He states he was informed his son was born with an eye defect and needed to have surgery in both eyes. He discussed the issue with his company commander and states his commander told him he would not see his child until he was one year of age. He shared his frustrations with his first sergeant (1SG), but was told by his 1SG that he was not going to jeopardize his pension because of his company commander. He sought assistance from a local chaplain who informed him that they would need to address this issue with his unit official in charge of racism (Equal Opportunity Representative). Ironically, the official was his company commander. d. He sought military legal advice, but gained more frustration. His unit entered a period of block leave for 15 days. He had planned to go see his son at that time, but was not allowed to go as he was attached to support another unit while the rest of his unit was on leave. He explained his record was always spotless, had always been a hard worker, exemplary Soldier, and team player. He states he felt that he had lost all or his resources and reach out to a family friend in Puerto Rico who was also military. e. The applicant’s statement does not detail the circumstances of how, when, or whether his travel to Puerto Rico was in an authorized status. However, he states at the time of his son’s first year of age, two military police (MP) arrived at his home there and informed him he had to return with them to Fort Dix, NJ. Once at Fort Dix, he was interviewed, allowed to detail the events that led to him traveling to Puerto Rico. He was given two options, either address the issues surrounding his travel to Puerto Rico in a court-martial or he could agree to be released from the Army, with an under other than honorable discharge, with a potential of losing opportunities for Veterans related benefits and government jobs for at least 7 years. He chose the second option, but regrets his decision. 3. The applicant provides: a. Letter of Commendation, issued by Headquarters, 1st Cannon Training Battalion, Fort Sill, OK, for being designated as an Honor Graduate upon completion of his Field Artillery Cannoneers Class. b. Two Certificates of Achievement for outstanding performance driving his vehicle under dangerous terrain and weather conditions while maintaining a high state of readiness and for superior support during the battalion Nuclear, Biological, and Chemical team call out. c. His Airborne Course completion certificate, dated 26th September 1986. d. Letter of Appreciation, from the U.S. Army ROTC Instructor Group Senior Division, Campbell University, NC for outstanding support provided and display of the 105 Howitzer during the 13th annual Campbell University Junior ROTC Drill Meet. e. Honorable Discharge Certificate, dated 18 October 1987 as a part of his reenlistment in the Regular Army on 19 October 1987. f. Army Good Conduct Medal for period of service from 12 February 1985 through 11 February 1988. g. Department of Veterans Affairs, Veterans Canteen Service (VCS) Special Contribution Award (monetary award) for loyalty and services to the VCS. h. VCS Special Contribution Award Certificate for fulfilling the mission of the VCS. 4. A review of the applicant’s record shows: a. He enlisted for 3 years in the Regular Army on 12 February 1985. b. The applicant served in Korea from 18 July 1985 to 16 July 1986. He served until he was honorably discharged on 18 October 1987, for immediate reenlistment on 19 October 1987. d. DD Form 458 (Charge Sheet), dated 11 April 1989, reflects the applicant was charged with one specification of absenting himself from his unit (Battery B, 2nd Battalion, 319th Field Artillery, 82nd Airborne Division, Fort Bragg, NC, from 20 September 1988 until on or about 9 April 1989, without authority. e. On 12 April 1989, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service. In his request for discharge, he acknowledged his understanding that: * by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of an undesirable discharge * he acknowledged he understood that if his discharge request was accepted he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he was advised he could submit any statements he desired in his own behalf * he elected not to submit any statements in his behalf f. On 19 April 1989, his commander recommended him for discharge, for the good of the service in accordance with AR 635-200, chapter 10. He also recommended the applicant receive an Other Than Honorable Discharge Certificate. g. The separation authority approved the applicant's request for discharge on 19 May 1989, and ordered him discharged under the provisions of AR 635-200, chapter 10, for the good of the service, be reduced in rank to private/E-1, and issued an Under Other Than Honorable Conditions Discharge Certificate. h. Orders 160-85, dated 9 June 1989, issued by Headquarters, U.S. Army Training Center and Fort Dix, NJ, notified the applicant that he was reduced in rank to private/ E-1, and assigned to the U.S Army Transition Point for separation processing effective 6 July 1989. i. The applicant was discharged from active service on 6 July 1989 under the provisions of AR 635-200, chapter 10, for the good of the service-in lieu of court martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as under other than honorable conditions. He completed 3 years, 10 months, and 6 days of active service during this period and had lost time from 20 September 1988 to 8 April 1989. His DD Form 214 also shows he was awarded the following: * Army Good Conduct Medal * Army Service Ribbon * Overseas Service Ribbon * Parachutist Badge * Marksman Marksmanship Qualification Badge with Rifle Bar * Sharpshooter Marksmanship Qualification Badge with Grenade Bar 5. The applicant previously requested to have his reentry (RE) Code of “3, 3B, and 3C changed to a more favorable code and to upgrade his under other than honorable conditions character of discharge in ABCMR Docket Number AR20070007132, dated 8 November 2007. The Board determined the evidence presented did not demonstrate the existence of a probable error or injustice and denied his request because it determined that the overall merits of his case were insufficient as a basis for correction of the applicant’s records 6. By regulation AR 635-200, 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. The Board should consider the applicant’s submission 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 grant partial relief. The applicant’s contentions, service record and VA letter was carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. 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. Additionally, the Board noted that he applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X 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 him a DD Form 214 for the period ending 6 July 1989 showing his character of service as under honorable conditions (General). 2. The Board also noted that the applicant had a prior period of honorable service which is not currently reflected on his 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 12 February 1985 until 18 October 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. Army Regulation 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). 2. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. 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. 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 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// ABCMR Record of Proceedings (cont) AR20170015321 6 1