ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20180001533 APPLICANT REQUESTS: an upgrade of his under other than honorable discharge to general, under honorable conditions or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 that he got out due to his mother’s illness. He was denied a relocation back to the United States by his company commander and first sergeant. In 1986, he was stationed in Germany when his mother was diagnosed with cancer. He went to his chain of command and tried to request a transfer back to the United States as she went through her journey. His request was denied by his chain of command and was told to just take leave. He felt he was denied the right to speak with anyone else and while on leave he wrote and spoke to his congressman many times and still received no help. He was a very young kid that was trying to do the right thing by his mother as her only son and do right by the military that he loved and signed up for. The military was a career that he wanted. He asks that the Board give his case their time and consideration and thanks them for their time. 3. A review of the applicant’s active duty service record shows the following: a. After an exhaustive search of the applicant’s records no documentation concerning enlistment/reenlistment could be found. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) show an enlistment date of 11 June 1984. b. He served in Germany from 27 February 1985 to 28 February 1987. a. c. A congressional letter, dated 9 July 1986, was submitted on behalf of the applicant that stated due to the extreme problems his mother has caused by being a problem drinker (no mention of a cancer diagnosis), the applicant wishes to either be transferred to a stateside facility, close to his mother’s residence, or to be discharged. It states that the applicant’s mother has abused her children and he feels incapable of taking care of herself or anyone else. The applicant was the only person willing to work this situation out. d. Court-Martial charges were preferred on 5 February 1987. His DD Form 458 (Charge Sheet) indicates that he was charged with one specification of absence without leave (AWOL) from on/about 1 August 1986 to on/about 27 January 1987. The applicant signed an admission of AWOL statement. e. On 6 February 1987, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged: * He was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * He understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * He acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits * He acknowledged he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * He stated that under no circumstances did he desire further rehabilitation or to perform further military service * He elected not to submit a statement on his own behalf f. On 9 February 1987, his chain of command recommended separation in accordance with AR 635-200, paragraph 10-3 for the good of the service with an under other than honorable discharge. g. On 12 February 1987, the separation authority approved separation in accordance with AR 635-200, paragraph 10-3 for the good of the service with an under a. other than honorable discharge with a reduction to private/E-1 prior to the execution of the discharge, if applicable. h. Orders 32-2, dated 19 February 1987, discharged the applicant with an under other than honorable conditions discharge and reduced him to the lowest grade in accordance with AR 635-200, paragraph 10. i. He was discharged from active duty on 13 March 1987. His DD Form 214 shows that he was discharged in accordance with AR 635-200, paragraph 10 for the good of the service-in lieu of court-martial. He completed 2 years, 3 months, and 7 days of active duty service. He had lost time from 1 August 1986 to 26 January 1987. 4. The applicant’s record is void of evidence that show he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation. 5. By regulation, AR 635-200, chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (revised edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court- martial to which the charges may be referred 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board majority determined that relief was not warranted. The Board considered the applicant's statement, his record of service, the nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found the applicant provided no evidence of post-service achievements or letters of reference in support ot f a clemency determination. One member found sufficient evidence to recommend a change in the characterization of service to Under Honorable Conditions (General) based upon the lengthy term of honorable service completed prior to the single AWOL offense which resulted in the applicant’s separation. However, based upon a preponderance of evidence, to include the lengthy AWOL offense and a lack of mitigating reasons for the AWOL offense, the Board majority concluded that the characterization of service received at the time of separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 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. 8/13/2019 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 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 1-9d (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 1-9e (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, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 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, 1. 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.