ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20170018043 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate or Release or Discharge from Active Duty) 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 he was told by the Assistant Adjutant General X___ that if he remained clear of all legal complication for six months he could change his discharge to an honorable. 3. The applicant provides: a. His DD Form 214 which shows his service from 12 February 1980 to 18 January 1983. b. A copy of an affidavit showing he was told on 18 January 1983 along with a group of battalion members who were also told that if he remained clear of the law and did not get arrested or get into any legal trouble, he would be able to change his characterization of the other than honorable discharge to an honorable discharge. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 12 February 1980. b. He accepted nonjudicial punishment on: * 4 September 1980, for disobeyed a lawful order * 15 September 1980, absent without leave (AWOL) on 11 September 1980, his punishment in part reduction to E-1 (suspended for 60 days) * 27 February 1981, drunk and disorderly, his punishment in part, reduction to E-2 (suspended for 60 days) * 24 April 1981, for failed to be at the time prescribed to appointed place of duty, his punishment in part reduction to E-1 * 19 August 1981, disobeyed a lawful order c. A bar to reenlistment was approved on 22 January 1981, stating the applicant established a pattern of lateness to formations and details, failed to follow instructions and a flippant attitude in regards to the maintenance of his personal living area and his personal appearance. Additionally he had been involved in altercations with fellow Soldiers indicating a lack of self-discipline and maturity. He did not possess the character of initiative required of a Soldier today and was denied the opportunity to reenlist in the Army. d. The DA Form 4187 (Personnel Action) shows a change in his duty status: * 19 January 1982, present for duty to AWOL * 16 February 1982, AWOL to dropped from rolls (DFR) * 22 July 1982, DFR, to present for duty * 7 September 1982, present for duty to AWOL * 7 October 1982, AWOL to DFR * 12 December 1982, DFR to attached, returned to military control e. On 21 September 1982, by letter, the next of kin Ms. X___ X___ was notified and informed that the applicant had been absent without authority since 7 September 1982. f. Court martial charges were preferred against him on 7 October 1982. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being AWOL on 7 September 1982. g. On 15 December 1982, he did not desire a separation medical examination. h. He consulted with legal counsel on 17 December 1982 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * maximum punishment * he is guilty of the charge against him or of a lesser included offense * he did not desire further rehabilitation * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions * he would be deprived of many or all Army benefits administrated by the Veterans Administration * he may be deprived of his rights and benefits of a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge * he had the right to submit any statements on his own behalf, he elected not to submit a statement i. The immediate and the intermediate commander recommended the applicant for discharge on 4 January 1983 under the provisions of AR 635-200, Chapter 10 for 96 days AWOL and misconduct. j. Consistent with the chain of command recommendation, on 6 January 1983, the separation approval authority approved the applicant’s request for discharge for the good of the service. He would be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade. k. Court martial charges were again preferred against him on 16 December 1982. His Charge Sheet indicates he was charged with one specification of being AWOL from 7 September 1982 to 12 December 1982. l. He was discharged on 18 January 1983 under the provisions of AR 635-200, Chapter 10, for the good of the Service. His characterization of service is under other than honorable conditions, and his separation code (SPD) JFS – for the good of the Service, in lieu of court martial. He completed 2 years, 6 months and 29 days of net active service this period. He had lost time from 19 January 1982 to 15 February 1982, 16 July 1982 to 21 July 1982, and 7 September 1982 to 12 December 1982. 5. By law and regulation, 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. 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, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards for consideration of discharge upgrade requests 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 in support of a clemency determination. Based upon the short term of honorable service completed prior to a pattern of misconduct which included lengthy periods of AWOL, as well as insufficient evidence to show he accepted responsibility or showed remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was not in error or unjust. 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. 8/6/2019 X CHAIRPERSON Signed by: 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, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age length of service, grade and general aptitude. b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability. 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. //NOTHING FOLLOWS//