ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 April 2019 DOCKET NUMBER: AR20180002140 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Administrative Decision 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, during his initial 4-year enlistment, his service was exemplary. 3. The applicant provides a VA Administrative Decision, which states the VA considers the applicant's service from 14 August 1985 to 14 August 1989 to be honorable; as such, he is entitled to all VA benefits for this period. The characterization of service (under other than honorable conditions) for 15 August 1989 until 12 August 1991 bars the applicant from all VA benefits that would be based on that term of service. 4. The applicant's service record shows: a. He enlisted in the Regular Army on 14 August 1985 for a 4-year term; he held military occupational specialty (MOS) 31C (Single-Channel Radio Operator). b. On 25 August 1987, while assigned at Fort Bragg, NC, a general officer issued the applicant a memorandum of reprimand (GOMOR) for being involved in an alcohol- related driving offense. The service record does not show if he submitted a rebuttal; the imposing officer elected to file the GOMOR in the applicant's official military personnel file. c. Orders awarded him the Army Good Conduct Medal (1st Award) for service from 14 August 1985 through 13 August 1988. In addition, orders promoted him to sergeant (SGT)/E-5, with a 1 January 1989 date of rank. d. On 28 February 1989, he extended his enlistment until 13 April 1993 so he could participate in the BEAR (Bonus Extension and Retraining) Program; he requested to retrain into MOS 98G (Cryptologic Linguist), specializing in the Russian language. He was reassigned to the Defense Language Institute (DLI), Presidio of Monterey, CA and attended the Russian Basic Course from September 1989 through October 1990. His academic evaluation report indicated he achieved course standards and displayed superior leadership skills. e. Temporary duty (TDY) orders sent him to Goodfellow Air Force Base (AFB), TX to attend two courses: 11 weeks for MOS 98G (2 November 1990 to 7 February 1991) and 8 weeks for an associated additional skill identifier (19 February until 18 April 1991). f. In or around February 1991, civil authority was seeking the applicant on charges of forgery and/or fraud. In addition, the applicant failed the 98G course, did not pass the Army Physical Fitness Test, and was unable to meet Army height/weight standards. On 19 February 1991, the applicant's company commander directed him to return to his unit at DLI; he departed Goodfellow AFB, but never reported to DLI. He entered into an absent without leave (AWOL) status, effective 19 February 1991, and his unit dropped him from Army rolls on 21 March 1991. Civil authority arrested the applicant and returned him to military control on 28 June 1991; on 1 July 1991, orders transferred him to the U.S. Army Personnel Control Facility (PCF), Fort Sill, OK. g. On 3 July 1991, his PCF commander preferred court-martial charges against him for AWOL from 19 February until 28 June 1991. Also on 3 July 1991, and after consulting with counsel, the applicant requested discharge under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). 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 not to submit a statement in his own behalf. h. The applicant's PCF commander recommended approval of the applicant's request, stating the applicant had become disillusioned with the military and it was not in the Army's best interests to retain him. On 5 August 1991, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions; he also ordered the applicant's reduction to private/E-1. On 12 August 1991, the applicant was discharged accordingly. i. His DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he was awarded or authorized: * Army Service Ribbon * Parachutist Badge * Army Achievement Medal (2nd Award) * Army Good Conduct Medal (1st Award) * National Defense Service Medal * Expert Marksmanship Qualification Badge with Rifle Bar 5. The applicant initially earned promotions and awards, to include two awards of the Army Achievement Medal and the Army Good Conduct Medal (1st Award). His 130-day AWOL occurred after he had successfully completed the Russian language course, but following his failure to pass MOS 98G training/fulfill physical fitness standards. Discharges under chapter 10, AR 635-200 were voluntary, and were available in lieu of trial by court-martial once charges had been preferred. 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: 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 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. 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 administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. An honorable characterization was appropriate when the quality of the Soldier's service had generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would clearly be inappropriate. b. Paragraph 3-7b General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to Soldiers 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 were preferred. The request had to include the Soldier's admission of guilt. 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 punishment for AWOL over 30 days was a bad conduct discharge; if terminated by an apprehension, the Soldier could also receive 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002140 4 1