ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 August 2019 DOCKET NUMBER: AR20180005813 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 Correction of Military Record) * self-authored statement * three character statements * police record check 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 he believes the record to be an error due to his father suffering a brain aneurism. 3. The applicant provides: a. A self-authored statement which states his father suffered a brain aneurism around June 1992, while he was stationed at Schofield Barracks, HI. When he was notified that his father had a fifty percent chance of survival. He followed proper procedures for his leave request, but the leave was denied. Red Cross intervene, but he still got nowhere, so he went absent without leave (AWOL). Once his father was stable, he surrendered in Killeen, TX. He was processed and discharged. At the time, it did not occur to him the effects the discharge would have after separation. He wants to clear his name. b. Three character statements which states in summary, he is a person of good moral character; honest, reliable and think outside the box. He has worked several jobs and has a strong work ethic with integrity. He is an example to his coworkers of exemplary behavior and has always followed through on his commitments and exhibited the highest character in his decision-making and interpersonal relationships. c. The Brownsville Police Department, Cameron County, TX provides the applicant’s criminal history showing offenses from 21 October 1998 to 31 August 2012. 4. A review of the applicant’s service record shows: a. Having had prior service in the Army Reserve Delayed Entry Program he entered the Regular Army on 7 March 1989. b. His DD for 458 (Charge Sheet), dated 26 September 1991 shows court-martial charges were preferred against the applicant for one specification of being absent without leave (AWOL) from 13 August 1991 to 24 September 1991. c. The DA Form 4187 (Personnel Action), shows a change in duty status on 24 September 1991, AWOL/dropped from rolls (DFR) to surrendered to military authorities at Fort Hood, TX, the applicant was AWOL since 13 August 1991. d. He consulted with legal counsel on 26 September 1991 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * the right to submit a statement on his own behalf, he elected not to submit a statement * the maximum punishment * he was guilty of the charge against him or of a lesser included offense which authorized a punitive discharge * he did not desire further rehabilitation or a desire to perform further military service * if his discharge was approved, he may be discharged under conditions other than honorable and the effects of the discharge * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State laws e. Consistent with the chain of command recommendations, on 7 February 1992, the separation authority approved the applicant’s request for discharge. He would be reduced to the lowest grade and issued an under other than honorable conditions discharge certificate. f. He was discharged from active duty on 26 February 1992 under the provisions of AR 635-200, Chapter 10, for the good of the service, in lieu of trail by court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that his characterization of service is under other than honorable conditions. His separation code (SPD) - KFS, this separation code has a corresponding reenlistment code (RE) of 3. He completed 2 years, 10 months and 8 days of net active service. He had lost time from 13 August 1991 to 24 September 1991. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation AR 635-200, chapter 10 an individual who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service. The request may be submitted at any time after charges have been preferred. An under other than honorable discharge certificate will normally be furnished an individual who is discharged for the good of the service. 7. 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. 8. By regulation 601-210, (Regular Army and Reserve Enlistment Program) paragraph 3-8, the RE Code associated with this separation is RE-3 which applies to persons who are not qualified for continued Army service, but the disqualification is waiveable. Ineligible for enlistment unless a waiver is granted. 9. 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 review of the application and all evidence, the Board determined relief is warranted. The applicant’s contentions and letters of support 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. The Board agreed an Under Honorable Conditions (General) character of service is warranted, as he did not meet the standards of acceptable conduct and performance of duty for Army personnel making him suitable for an Honorable characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 26 February 1992 showing his character of service as Under Honorable Conditions (General). 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. AR 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an (Honorable Discharge) is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b states a (General Discharge) is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10-1, provides that a Soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. 3. AR 600-200 (Enlisted Personnel Management System), paragraph 6-11, states when the separation authority determines that a Soldier is to be discharged from the service under than honorable conditions, he or she will be reduced to the lowest enlisted grade. ·Board action is not required for this reduction. The commander having separation authority will, when directing a discharge under other than honorable conditions, or when directed by higher .authority, direct the Soldier to be reduced to private, E-1. 4. AR 635-5-1, table 2-3 (Separation program designator codes applicable to enlisted personnel), provides that a member who is discharged under the provision of AR 635-200, chapter 10, in lieu of trial by court martial will be assigned the Separation Code KFS. This Separation Code has a corresponding RE Code of 3. 5. AR 601-210 (Regular Army and Reserve Enlistment Program), governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army and the U.S. Army Reserve (USAR) for enlistment on or enlistment on or after the effective date of this regulation. 6. 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, 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) AR20180005813 4 1