IN THE CASE OF: BOARD DATE: 24 February 2020 DOCKET NUMBER: AR20180007567 APPLICANT REQUESTS: The applicant requests his under honorable conditions (general) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge) in lieu of a DD Form 149 (Application for Correction of Military Records) * DD Form 214 (Certification Release of Discharge) 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 requests an upgrade in his discharge to receive VA benefits. He states that while serving in Korea in 1994, he was injured and his physical deterioration from this injury led to his depression after failing the physical fitness test. He further states that the depression caused him to ask for an early out without a mental evaluation. 3. On 30 March 1992, the applicant enlisted into the Army National Guard (ARNG) for a period of 8 years. He completed both Basic Training (BCT) and Advanced Individual Training (AIT) and was awarded the MOS 68N (Avionic Mechanic). After two years of honorable service, he requested to be discharged from the ARNG and enlisted in the Regular Army (RA) on 26 January 1994 for a period of 4 years. He attend AIT and was subsequently awarded the MOS 31L (Wire System Installer) and was assigned to Korea from 14 April 1994 to 13 April 1995. 4. On 15 May 1995, he was assigned to Fort Gordon, GA. Approximately 3 months later, on 3 August 1995, he accepted non-judicial punishment for being absent without leave (AWOL) from 5 – 9 July 1995 (4 days). His punishment was forfeiture of $199, 14 days extra duty, and 14 days restriction. Two DA Forms 4187 shows the dates his duty status was changed, however, it is void of the information that shows whether he was apprehended and returned to military control or surrendered himself to military control. His record is void of a DD Form 553 a report of return to military control or DA Forms 4856 (Record of Counseling). 6. On 1 February 1996, the applicant received a mental evaluation it shows there was no evidence of a mental disorder that would require or benefit from treatment and it is likely that the applicant’s behavior would continue to negatively affect unit cohesion and morale 7. On 22 February 1996, the applicant’s immediate commander notified him that he was being recommended for separation under the provisions of AR 635-200, 14-12c (Commission of a Serious Offense). The reason for the proposed action is the serious offense of AWOL from 5 July 1995 to 9 July 1995. a. The applicant acknowledged the commander’s intent to separate him under chapter 14-12c (Commission of a Serious Offense). He was advised by counsel of the basis for the separation action, the rights available to him, and the effect of waiving those rights. He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits and declined to submit statements in his own behalf. b. On 8 March 1996, the appropriate separation authority approved the separation issuing the applicant and under honorable conditions (general) discharge. 8. On 19 March 1996, he was discharged accordingly, his service was characterized as Under Honorable Conditions (general) for misconduct. His DD Form 214 shows he completed 2 years, 1 month and 19 days of net active service to include 1 year of Foreign Service; and reflects the award and decorations: Army Service Ribbon, National Defense Service Medal, and the Overseas Service Ribbon. 9. The applicant requests an upgrade of his characterization of service and states he was injured in Korea and his physical deterioration from this injury led to depression after failing the physical fitness test. The depression caused him to ask for an early out without a mental evaluation. a. His record is void or evidence that shows he was injured in Korea. Neither the applicant nor his records provide evidence that shows he requested to be separated without a mental evaluation. His records show he received a medical examination and did not identify injuries and/or depression on his report of medical history. His mental status evaluation cleared him for separation and does not show he was depressed or that he had any other mental health behavior. b. In regards to the requested relief, Amy Regulation 635-200 provides: (1) Rehabilitative efforts were not mandatory for members separated under paragraph 14-12(c), however, it did require that commanders take a multitude of factors into consideration prior to initiating separation action, to include the seriousness of the offense and the likelihood that it would occur again and consideration of the soldiers entire military record (current and prior service). His record shows he completed honorable service in the Army Reserve National Guard, he enlisted in the Regular Army and successfully completed training for a second MOS. His record is void of indiscipline, counseling's, or any other type of adverse action prior to or after his one- time offense of going AWOL for four days. (2) Due to the administrative irregularity in the proper retention of military records we are unable to provide whether the applicant was apprehended or surrendered himself to military authorities. Additionally, due to the lack of evidence we are unable to provide why his commander took over 7 months to initiate separation action for his one-time AWOL offense. (3) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. Although an under other than honorable conditions characterization of service is normally appropriate for a Soldier discharged under this chapter; the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 10. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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 guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or general under honorable conditions character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :XXX 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 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 1 (General Provisions) states there is substantial investment in the training of persons enlisted or inducted into the service. Reasonable efforts of rehabilitation should be made prior to initiating separation. Unless separation is mandatory, the potential for retention will be considered and should also consider the following factors: (1) Adequate counseling and rehabilitative measures will be taken the reason for separation specifies. (2) When deciding retention, consider the following factors: * Seriousness of the event * Likelihood the events would reoccur * Likelihood the soldier would be disruptive or undesirable influence for future assignments * The soldier's ability to perform duties effectively now or in the future * Soldier's rehabilitative potential * The soldier's entire military record (current and previous service) (2) A highly deserving soldier may be given a probation period. The separation authority or higher authority may suspend execution of an approved separation for a period not to exceed 6 months to allow a soldier to show they are able to behave properly or can perform assigned duties efficiently. (3) When separation is ordered, the original copy of the proceedings will be filed in the permanent section of the soldier's military personnel records jacket. (4) When a soldier was the subject of DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), ensure a report of return has been sent to the Army Deserter Information Point. b. Chapter 3 (Types of Characterization or Description) states characterization at separation will be based upon the quality of the soldier's service. As a general matter, characterization will be based upon a pattern of behavior rather than an isolated incident; however, there are circumstances in which conduct or performance reflected by a single incident provides the basis for characterization. Due consideration will be given to the soldier's age, length of service, grade, aptitude, physical and mental condition, and the standards of acceptable conduct and performance of duty. (1) An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally 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. (2) A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable. (3) An under other than honorable conditions characterization is given is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons or for the good of the service in the following circumstances: * Use of force of violence to inflict serious bodily injury or death * Abuse of a position of trust * Disregard by a superior * Acts or omissions that endanger the security of the United States or health and welfare of other soldiers * Deliberate acts or omissions that seriously endanger the health and safety of others. c. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. (1) Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, if the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ and pertains to an absentee returned to military control from a status of absent without leave or desertion or abuse of illegal drugs. (2) Upon determining separation for acts or patterns of misconduct is in the best interest of the Service, he will submit a separation report through the intermediate commander. (3) The intermediate commander, will (except for abuse of illegal drugs): * Disapprove the recommendation and direct reassignment or direct disposition by other means * Approved the recommendation and if applicable, direct through medical channels if the soldier has an incapacitating physical or mental illness that was the direct or substantial contributing cause to the conduct and action under the UCMJ is not initiated. * Recommend separation for unsatisfactory performance, if the reason for separation is determined to be a patter and unsatisfactory performance was stated as a basis in the initial separation notification. (4) A discharge under other than honorable conditions is normally appropriate for soldiers discharged for misconduct. The separation authority may direct a under honorable conditions (general) if such is merited by the soldiers overall record. When a soldier has completed entry level status, a characterization of service as honorable is not authorized unless the record is otherwise so meritorious that any other characterization would be clearly inappropriate. Only the general court-martial convening authority or higher authority may approve an honorable, unless delegated. (5) The separation authority is authorized to order discharge under than honorable conditions or direct retention. In considering whether retention should be recommended or approved, consider the gravity of the offense, related events and extenuating circumstances. Upon determination a soldier will be separated under other than honorable conditions, the separation authority will direct reduction to the lowest enlisted grade. 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. a. 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 (to include that provided by an applicant), 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. b. 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) AR20180007567 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180007567 6 ABCMR Record of Proceedings (cont) AR20180007567 5