ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20170015677 APPLICANT REQUESTS: a reconsideration of the previous request to upgrade to his under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * XXXX High School Letter 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 AR20110021972 on 13 December 2011. 2. The applicant states: a. Prior to entering the Army he confided in his recruiter that he ran away from home and showed interest in joining the Army, but he was not a high school graduate. At the time he was immature child in a vulnerable position, but when he showed up at the recruiting station, his recruiter was sitting behind his desk and he completing a high school graduation certificate from the XXXX high school, XXX a place he had never been in his life. The recruiter then signed the applicant father’s signature for his entry into the Army and there was another recruiter there who signed his mother’s signature. They put him on a bus with $20 and the answers to the entry exam. b. It was revealed later that he did not tell the truth to join the Army and he was considered an outcast. He was afraid for his safety, so he went absent without leave (AWOL). He has lived the last 40 years with shame and embarrassment for his actions. 3. The applicant provided the XXXX high school letter, dated 22 July 2013, states he has never enrolled at this school. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 20 July 1977. b. The DA Form 4187 (Personnel Action) shows his duty status changed from: * present for duty to absent without leave (AWOL) on 3 October 1977 * AWOL to present for duty on 11 October 1977 * Present for duty to AWOL to dropped from unit rolls (DFR) on 25 October 1977 * DFR to returned to military control, on to confinement military authority on 6 January 1978 * Confinement military authority to present for duty on 10 January 1978 c. He accepted nonjudicial punishment on 13 October 1977 for being AWOL from 3 October 1977 to 11 October 1977. d. Court martial charges were preferred on 10 January 1978. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave from 25 October 1977 to 5 January 1978. e. He consulted with legal counsel on 11 January 1978 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 right to submit a statement on his own behalf * 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 f. The applicant elected to make a statement in his behalf that stated in part that he thought joining the Army he would change. After joining he disliked it some much that he started drinking very heavily, every night. One night he did not wake up for a fire guard because of he was drunk. He requested the discharge because he could not adapt to military life. g. The applicant underwent a medical examination and mental evaluation on 11 January 1978 for separation and the examiners stated the he was qualified for separation and had the mental capacity to understand and participate in board proceedings. h. On 25 January 1978, 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. i. On 8 February 1978, he was discharged from active duty under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of court martial, SPD – JFS. his characterization of service is under other than honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 months, and 1 day of active service, and he had 80 days of lost time. j. The Army Discharge Review Board (ADRB) upgraded the applicant’s discharge to a general discharge on 22 October 1980. k. The Army Board of Correction of Military Records (ABCMR) by letter, 13 December 2011, responded to the applicant’s reconsideration of DOCKET Number AR20100018229 and informed him that he must provide new evidence or argument that was not considered at the time of the ABCMR’s prior consideration, His request was return without action. 5. By law and Army Regulation 635-200, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. 6. 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). 7. 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. 8. 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. 9. 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 relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 to amend the decision of the ABCMR set forth in Docket Number AR20110021972 on 13 December 2011. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. 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 3-7a (Honorable discharge) states 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. b. 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. 2. 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) AR20170015677 5 1