ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 10 July 2019 DOCKET NUMBER: AR20180003579 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge to an honorable discharge * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 (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 it is his contention that his post-service accomplishments outweigh his behavior while on active duty. He believes that he did not receive a fair administrative discharge. In the interest of justice his case should be heard. 3. Review of the applicant’s military record shows: a. He enlisted in the Regular Army on 22 November 1977, for 3 years. He was assigned to Headquarters and Headquarters Company, 2nd Battalion, 70th Armor, Fort Stewart, GA on 25 May 1978, in military occupational specialty 91B (Medical Specialist). He was promoted to pay grade E-3 on 27 April 1979. b. On 14 May 1980, a bar to reenlistment was approved against him. c. On 21 May 1980, he accepted nonjudicial punishment for being absent without leave (AWOL) from 14 to 19 February 1980 and from 4 March to 24 March 1980. His punishment included a reduction to pay grade E-2. d. His available record contains the following: (1) DA Form 4187 (Personnel Action), dated 27 June 1980, showing he was reported AWOL on 27 May 1980 and dropped from the rolls of his unit on 27 June 1980. (2) Request for Discharge for the Good of the Service memorandum (first page), dated 30 December 1980, wherein after consulting with legal counsel, he was advised of the basis for the contemplated trial by court-martial for an offense punishable by an undesirable discharge. Following consultation, he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). He acknowledged: * maximum punishment for AWOL in excess of 30 days * if his request for discharge was accepted, he may be discharged with a bad conduct or dishonorable discharge * his rights (3) Request for Discharge for the Good of the Service memorandum, 6 January 1981, wherein the Commander, Personnel Control Facility, Fort Bragg, NC, stated he had personally interviewed the applicant on that date. The applicant stated he was aware of the nature of the interview and the consequences of a discharge under other than honorable conditions. The applicant desired elimination from the service under the provisions of chapter 10, AR 635-200, under less than honorable conditions. The applicant stated that his approximate 205 days of AWOL were caused by family problems. The applicant stated his father was an alcoholic, his father had begun to abuse his mother and sister, and he departed AWOL to help his family. He had no desire to remain in the Army, he would not have returned had he not been arrested, and he would go AWOL again; if necessary to return to his family. The commander recommended the applicant’s discharge under other than honorable conditions under chapter 10, AR 635-200. (4) DA Form 4187, dated 12 January 1981, showing the applicant was apprehended by civil authorities in Tampa, FL, on 17 December 1980. On 18 December 1980, he was transported to Fort Stewart and later to his unit. (5) Request for Discharge for the Good of the Service memorandum, dated January 1981, wherein the applicant’s battalion commander recommended approval of the applicant’s discharge and issuance of an Under Other Than Honorable Conditions Discharge Certificate. (6) Request for Discharge for the Good of the Service memorandum, dated 20 January 1981, wherein the separation approval authority approved the applicant’s separation under chapter 10, AR 635-200, and directed to the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade, (7) DD Form 214 showing he was discharged accordingly on 29 January 1981. His service was characterized as under other than honorable conditions. The form also shows he completed 2 years, 6 months, and 14 days of active service and he was awarded/authorized the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 5. By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes an undesirable discharge, may submit a request for discharge 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. 7. By regulation (AR 15-185), applicant do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. BOARD DISCUSSION: 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. After review of the application and all evidence, the Board determined relief is not warranted. 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. Based upon the multiple AWOL offenses and the lack of character evidence submitted by the applicant showing he has learned from the events leading to his separation, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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. 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 (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) – 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 – an individual who had committed an offense or offenses, the punishment for which included an undesirable discharge, could submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service; however, the separation authority could direct a General Discharge Certificate, if such was merited by the Soldier’s overall record during the current enlistment. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. 4. 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003579 2 1