ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170017820 APPLICANT REQUESTS: an upgrade to his under conditions other than honorable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement 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 provides a self-authored statement which states, a. Upon arrival to advance individual training he was notified by his command and the American Red Cross that his mother was gravely ill and in intensive care and he was granted 4 weeks of emergency leave. However, his mother’s condition remained critical for over 8 weeks. At the end of his emergency leave, he never contacted his command and chose to remain with his mother. He realized that this was a mistake, but his concerns were focused on his mother. b. He was absent from leave (AWOL) from 16 October 1977 to 10 February 1978. He was apprehended and returned to military control. Upon return, he was asked by his commander if he wanted to remain in the Army or return home, but at the time his mother was still in intensive care and he chose to take the discharge and his is mother shortly passed. c. He was young and it was the first time he had been away from home and the last thing he was thinking about were the realization or the ramification of his actions or the decisions he made. While attempting to seek veteran affairs benefits he was informed that his character of discharge is dishonorable, but his DD Form 214 (Report of Separation from Active Duty) shows under other than honorable. He truly doesn’t believe that his actions constitute a dishonorable discharge. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 15 March 1977. b. He accepted nonjudicial punishment on: * 24 June 1977 for failure to go at the time prescribed to his appointed place of duty * 29 August 1977 for theft, his punishment in part was reduction to E-1 c. Two DA Form 4187 dated 18 October 1977 reported him AWOL from 1 October through 14 October 1977. On 13 November 1977, he was dropped from roll (DFR). d. The next of kin Ms. X____ was notified by letter on 17 November 1977 that the applicant had been AWOL since 16 October 1977 and that he had been DFR and 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 also advised if she knew of his whereabouts to urge him to return to military control without delay. e. DA Form 3835 (Notice of Unauthorized Absence from United States Army), dated 18 November 1977 shows he was AWOL as of 16 October 1977 and DFR on 13 November 1977. f. The Federal Bureau of Investigation reported on 31 January 1978 that the applicant has been apprehended by civil authorities on 27 January 1978. He was confined at the Naval Education and Training Center, Newport, RI. g. The applicant underwent a medical examination on 2 February 1978 for separation and the examiner stated he was qualified for separation. h. Court martial charges were preferred on 9 February 1978. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave from 16 October 1977 to 1 February 1978. i. He consulted with legal counsel on 10 February 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 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 j. DA Form 4187, dated 13 February 1978 reported the applicant DFR to returned to military control at Newport, RI on 1 February 1978 and apprehension efforts had been terminated. k. On 24 February 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. He would be reduced to the lowest grade and issued an under other than honorable conditions discharge certificate. The reason authority for discharge will be shown as Separation Program Designators (SPD): KFS. l. On 2 March 1978, he was discharged from active duty under the provisions of AR 635-200, chapter 10, in lieu of court martial, his characterization of service is under conditions other than honorable. His DD Form 214 shows he completed 8 months, and 2 days of active service, and he had 108 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 KFS 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 a pattern of misconduct, some involving criminal behavior (theft), as well as a lack of character evidence to show that the applicant has learned and grown from the incidents which led to his discharge, 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: 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) AR20170017820 5 1