ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 May 2019 DOCKET NUMBER: AR20180002488 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for 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: a. His time in Germany occurred when he was 17 years old and he was very immature. This caused conflicts within his military family and fatal error in judgement on his part. It was overwhelming adapting to the strict Army life and being away from home and being overseas were the contributing factors for his three absent without leave (AWOL) periods. b. In addition, he knows that it was wrong, although, at the time he didn’t see another way to handle his problems. His first 16 months he was a good Soldier and had a great record with no issues. It was one incident that turned his career path upside down and caused multiple AWOL situations. He feels a general under honorable discharge represents his service better since half of his time in the service was in good standings. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 23 May 1977 a. b. His DA Form 2-2 (Insert Sheet to DA Form 2-1, Record of Court Martial Conviction) shows that the applicant was charged with AWOL on 2 January through 14 January 1979. He was sentenced to be confined at hard labor for 45 days and forfeit $279.00 pay per month for one month on 16 February 1979. c. He again received nonjudicial punishment on: * 6 July 1977, for being AWOL on 2 July through 4 July 1977 * 13 February 1978, he failed to go to his appointed place of duty * 2 November 1978, he failed to go to his appointed place of duty and AWOL from 4 October through 28 October 1978, his punishment in part, reduction to E-1 * 20 November 1978, he failed to go to his appointed place of duty d. The twelve counseling statements shows that he was counseled on numerous occasions ranging from 15 March 1978 through 14 January 1979 for sleeping on duty, AWOL, failure to be at the appointed place of duty, disrespectful toward a noncommissioned officer, attitude problems, substandard appearance, and failing to pay his debts. e. The applicant acknowledged receipt of the notification of his proposed discharge from the Army on 30 January 1979. He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures and rights available to him. He waived consulting with legal counsel on the contemplated action to separate him for frequent acts of a discreditable nature under the provision of chapter 14, AR 635-200. He acknowledged: • he may submit a statement in his own behalf, he elected not to submit a statement • .he waived his rights for consideration of his case by a board of officers • the rights available to him and the effect of waiving said rights • he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him • he would be ineligible to apply for enlistment in the Army for a period of two years after discharge f. On 30 January 1979, the applicant's immediate commander initiated discharge proceedings under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-33b (1), for a pattern of misconduct of frequent acts of a discreditable nature. The commander requested waiver of further counseling and rehabilitative transfer in the case of the applicant. a. g. The applicant submitted a withdrawal of waiver for his case to be considered by a board of officers on 15 February 1979. h. On 20 March 1979, he underwent a mental evaluation for separation under AR 635-200, chapter 14, which states he had the mental capacity to understand and participate in the chapter proceedings. i. The applicant requested that his previous withdrawal of waiver of a board of officers be disregarded. The board of officers under chapter 14, AR 625-200 were no longer desired. j. Special Court Martial Order Number 7, dated 12 March 1979, charged the applicant with one specification of AWOL from 2 January through 14 January 1979. He was sentenced to be confined at hard labor for 45 days and forfeit $279.00 pay per month for one month on 16 February 1979. On 12 March 1979 the sentence was approved and duly executed. The designated place of confinement US Army Area Confinement Facility, Mannheim, Germany. k. He underwent a medical examination on 28 March 1979 and the examiner qualified him for discharge under the provisions of AR 635-200, chapter 10 discharge. l. On 5 April 1979, consistent with the chain of command’s recommendations, the general court martial authority approved the request for discharge under the provisions of AR 635-200, paragraph 14-33b (1) for a pattern of misconduct of frequent acts of a discreditable nature with civil or military authorities, SPD: JKA (desertion) and directed that he receive an under other than honorable condition discharge certificate. m. The applicant was discharged from active duty on 1 May 1979, under the provisions of AR 635-200, paragraph 14-33b (1) for a pattern of misconduct for frequent involvement in incidents of a discreditable nature with civil or military authorities, SPD JKA. His service characterization is under conditions other than honorable. His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 9 months, and 27 days of active service this period. He had 43 days of lost time. 4. 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. 5. By regulation, 635-200, chapter 14 establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct. 1. 6. By AR 635-5-1 (Personnel Separations-Separation Program Designators) states that the separation program designator (SPD) code is used in statistical accounting to represent the reason for separation. The SPD JFK is the designator for misconduct- desertion. 7. In reaching its determination, the Board can consider the applicants 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 on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of service completed prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant showing he has learned and grown from the events leading to discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. X 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 (Personnel Separations - Enlisted Personnel), in effect at the time, provides 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. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). 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 discharged because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Chapter 14-33b (1) states Soldiers are subject to separation for a patterns of misconduct when frequent incidents of discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, or an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents. 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, 1. 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.