ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20180000240 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letters of Recommendation (3) 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 turned himself in because he wanted to do the honorable thing. He served his country for 2 years and 7 months. 3. The applicant provides: a. Letter, dated 27 December 2017, from his case manager which states he is a resident in the clinical program from 24 August 2017 to the present. He was homeless since December 2015. He started attending a tech school for welding on 5 February 2018. The program provides him housing, 3 daily meals, individualized case management counseling, substance abuse, access to vocational training and assistance in locating permanent employment. His program also offers weekly educational and support groups including anger management, cognitive awareness, sobriety support, and financial management. b. Letter dated, 27 December 2017, from a friend who has known him before he joined the military. His friend states he has always been kind intelligent, and patriotic even as a young man, despite his childhood issue like the suicide of his father. The applicant joined the Army to gain a sense of manhood and somewhere along the line, he suffered through some things that changed his life forever. He became an alcoholic a. while serving in the Army after never having a drink in his entire life up to that point. Now, he is enrolled in a "trade tech" making an attempt to change his life for the better. He states he did well over 2 years in the service of this great country and it would be a travesty to deny a veteran the chance at an honorable life. c. Letter from a good friend that has known him for as long as he can remember. The author states the applicant is an extraordinary individual with a personality unlike anyone he’s ever met. They shared music as one of their common interests. They worked on a lot of music together and in working with him he learned a lot about not only music but life as well. He states he is a very humble and mellow person but when he speaks he shows how intelligent he is. There were a lot instances where he provided a helping hand, words of encouragement, guidance or even just helped him to understand a new concept. He states the applicant is one of those people that never gets angry, he has an infectious smile. He has never seen him have a less than amicable interaction with other people. It kills him to look at the applicant and see him struggling the way he is knowing the type of person he has become. In spite of, the death of his father at a young age, he has struggled to become the man he is today. He joined the military at a young age and struggled to adapt to the rigors of military life. Though he was not successful, he truly did the best he could. One thing he taught him is the whole purpose of this journey we call life to learn as you live, how can you be expected to grow if you are being held back by things from the past especially when you have already learned from them, respect, value, comradery that was another thing he taught him. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 18 August 1987 for a period of 4 years. b. His DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) from 31 January 1990 to 21 January 1992. c. On 29 January 1992, court martial charges were preferred against him. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of AWOL from 31 January 1990 to 22 January 1992. d. On 30 January 1992, the applicant consulted with legal counsel and 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: * the maximum punishment if found guilty * he did not desire further rehabilitation * if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * * if approved, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge * he did submit a statement on his behalf e. He submitted a statement on his behalf on that same date, which explains his reason for going AWOL was due to his mother being extremely ill and near death due to asthma. He called his Fort Carson Company for an extension of leave and was denied. He talked to Master Sergeant X for that reason he wanted to make sure his mother would be well before he returned to duty. f. On 9 March 1992, his unit commander recommended approval of the applicant’s request. g. On 16 March 1992, consistent with the chain of command's recommendation, the separation authority approved the applicant’s request for discharge for the good of the service with an under other than honorable conditions discharge. He would be reduced to the lowest enlisted pay grade. h. On 2 April 1992, he was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 10 (For the Good of the Service- In Lieu of Trial by Court-Martial) with an under other than honorable conditions characterization of service. He completed 2 years, 7 months, and 25 days of active service time and he had lost from 31 January 1990 to 21 January 1992. It also shows he was awarded or authorized the Army Service Ribbon. 5. By regulation an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other Than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service in lieu of trial by court-martial. 6. 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. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement., the frequency and nature of his misconduct, the reason for his separation, his stated reason for the AWOL and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for his absence and considered the three letters of reference provided by the applicant. The applicant did not submit additional evidence of post-servie achievements in support of a clemency determination. Based upon a preponderance of evidence, to include the lengthy AWOL offense which resulted in the applicant’s separation, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service. 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. 7/18/2019 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 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. 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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member 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. 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 on the basis of 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 1. 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.