ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS \ BOARD DATE: 5 February 2018 DOCKET NUMBER: AR20170016190 APPLICANT REQUESTS: * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 21 December 1983, to show the spelling of his first name as "Nicholas" instead of "Nichalus" * his under other than honorable conditions discharge be upgrade to an honorable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * DA Form 2-1 (Personnel Qualification Record – Part II) * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 4 August 1980 * 8-pages of Medical Documents, covering the years of 1980 to 1981 * Enlistment/Travel Order Number 225-2, issued by the Armed Forces Examining and Entrance Station, Albuquerque, NM on 6 November 1980 * Orders 57-238, issued by Headquarter, U.S. Army Training Center Engineer and Fort Leonard Wood on 26 February 1981 * Orders 69-204, issued by Headquarter, U.S. Army Training Center Engineer and Fort Leonard Wood 10 March 1981 * DA Forms 4187 (Personnel Action), dated 31 December 1981 and 12 January 1982 * DA Form 2627 (Record of Proceedings Under Article 15, [Uniform Code of Military Justice] UCMJ), dated 18 January 1982 * Orders 106-6, issued by Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart on 28 May 1982 * Order 349-382, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill on 15 December 1983 * DD Form 214, for the period ending 21 December 1983 * Letter from Veterans Service Office, Cortez, CO dated 14 August 2017 * State of Colorado Driver License 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. A review of his service records will show that he was absent without leave (AWOL) for one day. He notified his commanding officer via telephone and explained why he missed his flight back. He was told to turn himself in at Kirtland Air Force Base, and so he did. b. He realizes he did not go to Germany but there were extenuating circumstances. He had a girlfriend at the time and they had two boys. There was no way that anyone else would help or support her. What he did was wrong but he had to take care of his two boys. Lastly, he was young and inexperienced and he wishes the Army would have helped him with his personal family problems. 3. Having had prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 6 November 1980. 4. A DA Form 428 (Application for Identification Card), dated 11 November 1980, shows the applicant’s first name as "Nicholas." 5. The applicant accepted non-judicial punishment (NJP) on 18 January 1982, under the provisions of Article 15 of the UCMJ, for being AWOL from on or about 28 December through on or about 29 December 1981. 6. Court-martial charges were preferred against the applicant on 7 November 1983 for being AWOL from on or about 13 August 1982 to on or about 13 October 1983. 7. The applicant consulted with legal counsel on 9 November 1983. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court- martial. 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 a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved 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. c. He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements. 8. The separation authority approved the applicant's request for discharge on 8 December 1983 and directed his reduction to the lowest enlisted grade and the issuance of an under other than honorable conditions discharge. 9. The applicant was discharged on . His DD Form 214 shows: * his first name as XXXXXX"" * his service was characterized as under other than honorable conditions * he had lost time from (1 day) and from 13 August 1982 to 12 October 1983 (14 months) 10. The applicant provides numerous documents from his official military personnel file in support of his request for upgrade. 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting evidence, to include the statement from the applicant, the Board determined that partial relief was warranted. Based upon the records from the applicant’s service record depicting the spelling of his first name as requested by the applicant, the Board recommends amending his DD214 to show the correct spelling of his first name. However, the Board also found that the length of the second AWOL offense warranted the characterization of service received; thus no injustice was present requiring changing it. In the opinion of the Board, the characterization of service received by the applicant correctly and appropriately depicted the characterization of service of the applicant. 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 partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the spelling of his name to show “" 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge under other than honorable conditions. 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. 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 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214. It states the purpose of the separation document is to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form be complete and accurate, reflective of the conditions as they existed at the time of separation. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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. ABCMR Record of Proceedings (cont) AR20170016190 2 1