IN THE CASE OF: BOARD DATE: 6 March 2020 DOCKET NUMBER: AR20180004281 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board (ADRB)) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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, in effect, he was going through a lot of family problems just before his discharge. At the young age of 23, and motivated by his wife actions, he decided to go absent without leave (AWOL); while he regrets his decision, he indicated, being continually sent on field training exercises, coupled with his wife leaving him, was just too much. 3. The applicant's service records show: a. On 27 May 1994, the applicant enlisted into the Regular Army for 4 years. Following initial training, orders assigned him to Korea; he arrived on 3 January 1995. On 12 January 1996, he completed his tour in Korea, and orders reassigned him to Fort Hood, TX; he arrived on or about 13 February 1996. On 1 September 1996, his Fort Hood chain of command promoted him to specialist (SPC)/E-4. b. Effective 3 November 1996, the applicant's Fort Hood unit reported him as AWOL, and dropped him from Army rolls on 3 December 1996. c. On 3 March 1997, the applicant surrendered himself to military authorities at Fort Knox, KY; orders reassigned him to the Fort Knox U.S. Army Personnel Control Facility (PCF), effective that same date. d. On 5 March 1997, the applicant's PCF commander preferred court-martial charges against for AWOL from 3 November 1996 until 3 March 1997 (120 days). Also on 5 March 1997, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge in Lieu of Trial by Court-Martial), 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 to submit the following statement in his own behalf: (1) He asked the separation authority to grant him a general discharge under honorable conditions. He stated his wife was with him at Fort Hood and she was pregnant with their only son; he began to have pay problems and tried to get help. Despite his efforts, his pay check was just not enough to feed a family of four and pay their rent. (2) His wife's mother sent them money for a while, but then the money stopped; when they were unable to pay the rent, his wife left him. He asked to move back into the barracks, but his commander denied his request; he did not know what else to do, so he went AWOL. (3) He noted, during his military service, he had been awarded an Army Commendation Medal, and had received numerous certificates of achievement. e. On 13 May 1997, the separation authority approved the applicant's request and directed his under other than honorable conditions discharge; the separation authority further ordered the applicant's reduction in rank to private/E-1. On 30 May 1997, the applicant was discharged accordingly; his DD Form 214 shows he completed 2 years, 8 months and 4 days of his 4-year enlistment contract, with lost time from 19961103 through 19970302. He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon and a marksmanship qualification badge. f. The applicant's service record was void of orders awarding him the Army Commendation Medal; in addition, there were no certificates of achievement. g. On 14 November 2008, the applicant petitioned the ADRB requesting an upgraded character of service. (1) He argued his discharge was unfair. He was married at the time and was living off post; he could not pay his bills and their electricity was turned off. He became mentally stressed as a result of his financial difficulties; then his wife left him. Her departure emotionally devastated him; he had no one he could talk to about what had happened, so he went AWOL to be with his family. The applicant nonetheless contended, up to the point he went AWOL, his performance evaluations had been above average and he was promoted to SPC/E-4; he loved the Army. He has since learned he had/has a bi-polar condition and, during the 5 years prior to submitting this application, he had been collecting Social Security Disability compensation. He opined he might have incurred his bi-polar condition after his wife left him. (The applicant offered no documentary evidence to support his claim of a bi-polar condition). (2) On 28 August 2009, the ADRB conducted a records review and determined the applicant's discharge was both proper and equitable; the ADRB voted to deny the applicant's petition. 4. The applicant essentially states he went AWOL because of family problems. a. During his active duty service, the applicant was AWOL for more than 30 days; the Manual for Courts-Martial at the time showed the maximum punishment for this offense included a punitive discharge. Soldiers charged with UCMJ violations that carried a punitive discharge among its punishments could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. b. 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. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the frequency and nature of his misconduct, the separation packet including his statement and the reason for his separation. The Board did not find evidence of a medical condition contended by the applicant and he provided none. The Board found insufficient evidence of in-service mitigation for the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the corrections stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, except for the correction stated in the Administrative Note(s) that follow, 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): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. AR 600-8-22 states the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. 3. As a result, amend his DD Form 214, ending 30 May 1997, by adding the Korea Defense Service Medal. 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, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. The Soldier was to be given a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 3. The Manual for Courts-Martial, United States, 1984, Maximum Punishment Chart showed Article 86 (AWOL for more than 30 days) included a punitive discharge as one of its maximum punishments. 4. 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) AR20180004281 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180004281 5 ABCMR Record of Proceedings (cont) AR20180004281 4