IN THE CASE OF: BOARD DATE: 15 April 2019 DOCKET NUMBER: AR20180000508 APPLICANT REQUESTS: * in effect, upgrade his under other than honorable conditions discharge, for the period of service ending 12 January 1990 * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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 discharged because he bounced some checks; he was a teenager and unfamiliar with banking at the time. 3. The applicant's service records show: a. He enlisted in the Regular Army, on 21 February 1985, at 17 years of age, for a 3-year term. His enlistment documents showed his social security number (SSN) as "XXX-XX-XXXX." Following initial training, he was assigned to, arriving on 3 August 1985. His leadership promoted him to private first class (PFC)/E-3, effective 1 June 1986. b. On 11 August 1986, the applicant's commander notified him in writing of the intent to separate the applicant under the provisions of paragraphs 14-12b (A Pattern of Misconduct) and 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander stated her action was because of the following: the applicant wrote a check for over $500 on a closed account; between September and November 1985, the applicant wrote seven dishonored checks; and two civilian businesses sent letters of indebtedness. c. On 13 August 1985, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the contemplated separation action, and that he understood its effects, the rights available to him, and the effect of waiving those rights. He requested counsel, elected to have his case considered by an administrative separation board, and asked to appear before the board with counsel. He chose not to submit a statement in his own behalf. e. On 22 August 1986, the separation authority's legal advisor reviewed the applicant's separation packet; he noted the offenses committed were serious enough to warrant court-martial, but, because they had occurred outside the military's jurisdiction, he recommended separation action. On 26 August 1986, the separation authority directed the convening of an administrative separation board. f. On 24 October 1986, the applicant offered to voluntarily waive consideration of his case by an administrative separation board in exchange for an honorable discharge; on 5 November 1986, the separation authority disapproved the applicant's offer. On 13 November 1986, the applicant waived his right to an administrative separation board and requested a general discharge under honorable conditions; he withdrew his request on 18 November 1986. g. On 18 November 1986, an administrative separation board met to consider whether the applicant should be retained on active duty; the applicant appeared at the hearing with counsel. After considering all evidence, the board determined the applicant did commit serious offenses, respectively on 15 May and 2 June 1986, by writing checks on a closed account. In addition, the applicant exhibited a pattern of misconduct from August 1985 until June 1986 by continually writing checks for which there were insufficient funds. The board recommended separation under other than honorable conditions. h. On 18 December 1986, the separation authority approved the board's findings and recommendations, and directed the applicant's under other than honorable conditions discharge; in addition, he directed the applicant's reduction to private (PV1)/E-1. On 24 December 1986, the applicant was discharged accordingly; his DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he completed 1 year, 10 months, and 4 days of his 3-year enlistment. He was awarded or authorized the Army Service Ribbon and a marksmanship qualification badge. i. On 18 March 1988, the applicant applied for enlistment into the Regular Army. His DD Form 1966 (Record of Military Processing – Armed Forces of the United States), showed he answered "NO" to question 28 (Are you now or have you ever been in any Regular or Reserve branch of the Armed Forces or in the Army National Guard or the Air National Guard? (Give your Recruiter the appropriate DD Form 214 and/or DD Form 215)). In addition, the form listed his SSN as "XXX-XX-XXXX" and indicated his recruiter had verified the number against the applicant's SSN card. j. He enlisted into the Regular Army on 19 April 1988 for a 3-year term. Following initial training, he was assigned to; he arrived on or about 10 January 1989. His leadership promoted him to private first class (PFC)/E-3, effective 1 March 1989. k. He departed his unit in an absent without leave (AWOL) status on 17 March 1989 and his unit dropped him from Army rolls on 17 April 1989. He returned to military control at his Fort Bragg unit, effective 19 April 1989. l. On 6 June 1989, the applicant went AWOL again from; on 6 July 1989, his unit dropped him from Army rolls. On 21 October 1989, civilian authorities arrested the applicant and returned him to military control. Effective 21 October 1989, orders assigned the applicant to the U.S. Army Personnel Control Facility (PCF). m. On 30 October 1989, the applicant's PCF commander preferred court-martial charges against him for two periods of AWOL: 17 March until 19 April 1989 (33 days) and 6 June until 21 October 1989 (137 days). That same date, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, in-lieu of trial by court-martial, under chapter 10 (Discharge for the Good of the Service), AR 635-200. In his request, he affirmed no one subjected him to coercion and counsel had advised him of the implications of his request. He also acknowledged he was guilty of the charge. He elected to submit a statement in his own behalf, and stated the following: (1) He came into the Army because he wanted to attend college; he also had gotten a girlfriend pregnant. He explained to the recruiter that he would have sole custody, once his child was born. The recruiter told him to find someone to care for his child while he underwent training. Because the applicant had no family, he located a couple willing to take care of his child until he finished training; the fee was $500 per month. (2) His child was born during his 5th week of basic combat training; he took a 3-day pass and brought his baby daughter to the couple. During his advanced individual training, the baby needed medical attention; he went on emergency leave and completed a power of attorney for the couple, then he returned to training. (3) On his assignment to his permanent duty station, he informed his chain of command of his situation; he submitted a leave request in February 1989 so he could move his daughter to live with him at Fort Bragg. When the time came for him to go, he learned his commander had disapproved his request because the applicant had not accrued enough leave. The applicant went to the chaplain for help; he waited for the chaplain to check about his leave, but the chaplain never got back with him. (4) In the meantime, the couple who were caring for his daughter got very attached to her; realizing his chain of command was not helping, he lost his motivation and went AWOL. He planned to return in 30 days so he could be discharged. His commander told him, if he stayed out of trouble, he could be gone by 19 May 1989; however, his chain of command did nothing. His supervisor told him the commander had decided to retain him; the applicant then asked for a compassionate reassignment, but his supervisor said it would be easier if he just got out of the Army. Because he felt like no one was willing to help, he went AWOL again. n. On 1 November 1989, the PCF attempted to show the applicant's return to military control in the Army's data-processing system. A printout confirmed another Soldier had the SSN of "XXX-XX-XX8X"; it also indicated the applicant's correct SSN was "XXX-XX-XXXX." On 13 November 1989, the applicant signed a DA Form 4187 (Personnel Action), in which he affirmed his SSN had been erroneously entered on his enlistment contract as "XXX-XX-XXXX"; the correct number was "XXX-XX- XXXX." o. On 20 November 1989, the separation authority approved the applicant's request and directed he be discharged under other than honorable conditions; he also directed the applicant's reduction to PV1/E-1. On 12 January 1990, he was discharged accordingly; his DD Form 214 showed he completed 1 year, 3 months, and 7 days of his enlistment, and had two periods of lost time (890317-890418 and 890606-891020). He was awarded or authorized the Army Service Ribbon, Parachutist Badge, and two marksmanship qualification badges. p. On 17 January 1990, he petitioned the Army Discharge Review Board (ADRB), requesting an upgrade of his undesirable discharge under other than honorable conditions; he reported his date of discharge as 24 December 1986 (from his first period of service). The ADRB determined his discharge was proper and equitable, and denied his request. The Army Council of Review Boards advised the applicant of the ADRB results via letter, and noted his records indicated there was a second period of service from 19 April 1988 to 12 January 1990. The letter enclosed a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) in the event the applicant wished to request an upgrade in character of service; he never responded. 4. In regards to the applicant's request for a personal appearance, Army Regulation 15- 185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 5. Discharges under chapter 10, AR 635-200 were voluntary and can be requested once charges have been preferred, and in-lieu of trial by court-martial. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. 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 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-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, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges had been preferred. A discharge under other than honorable conditions was normally considered appropriate. 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 6-11 (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 4. The Maximum Punishment Chart in the Manual for Courts-Martial, in effect at the time, showed the punishments for Article 86 (AWOL for more than 30 days) included a dishonorable discharge. 5. 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 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. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000508 8 ABCMR Record of Proceedings (cont) AR20180000508 1