ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 August 2019 DOCKET NUMBER: AR20180009487 APPLICANT REQUESTS: upgrade from under other than honorable conditions to honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant self-authored statement * Permanent Change of Station orders * Medical Narrative Summary * DD Form 1351 * Two Military Pay Voucher * Applicant Sworn Statement * Statement of Performance * Reference statement 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 that he believes the accounts surrounding the reason for his other than honorable discharge are without consideration of his service. He has provided statements to explain the circumstances which led to his hospitalization in Germany. 3. The applicant provides’ a. A self-authored statement which states he would like to give accounts of the momentous events that led to his untimely discharge of military service. The problem that initiated the negative tum of events in his military career started in Stuttgart, Germany. He tried to get an extension to remain in country (Germany) to acquire passports for his family to accompany him to his next duty station in Yuma, Arizona. The applicant and his wife were repairing their relationship after being separated for a period of time. Realizing time was running out, he went to his command and asked for an extension at the permission of his first sergeant. His memory doesn't allow him to recall every detail of those events, but he knows it was out of character for him to disregard orders or put his military career in jeopardy intentionally. (1). What he does remember is doing everything in his power to stay in contact with his command and keep them in the loop while waiting on the paper work, and the passports for his two kids. Because the applicant and his wife were trying to get back together, he didn't automatically inform the personnel center that his wife was not living with him. He briefly remembers some of the questioning surrounding money for travel tickets; to this day his memory is not clear. He don't understand why he would sell tickets that he knew he would need to fly his family out of country with him. The only thing that makes sense to him is that those tickets got lost with other documents in the car crash. (2). It was his car accident that brought all of the factors to light. He was trying to put enough miles on his new car before shipping it to the United States so he didn't have to pay new car sales taxes. He was going back and forth from his unit in Stuttgart to take care of the necessary paperwork for them to accompany him to his next unit. His wife's sister home was about 300 hundred miles away to help her pack. It seemed like a good opportunity. Unfortunately, because of fatigue he feel asleep behind the wheel, crashed the car and broke two bones in his neck. He was air lifted from the crash site and ended up at Landstuhl Germany Regional Medical Center. After being there for a few days, it was determined that he needed a spinal fusion, and his surgery would be done at Army Brook Medical Center in San Antonio TX. (ABMC) There was some controversy about his status of being absent without leave (AWOL), but after contacting his unit it was determined that he was authorized to be in country. This is reported in the medical report from ABMC. (3). The accusation that he sold the airline tickets issued for his family's travel to buy his car is farfetched because he had saved up money to put down on the car. The money he drew from the different post locations was not meant to defraud and steal from the Army. Each time he drew his salary, he was informed that once he got to his state side company if there was any adjustments to be made, it would be done there. He had all of that paper work with him at the time of his car accident. Somehow a lot of that paper work along with other things got lost in the crash. When he was questioned about these events he was heavily medicated because it was after his spinal fusion, and he was on the medication Percocet daily to cope with pain. (4). He does not remember having a counsel on his behalf. He was placed in an intimidating position because of the charges of AWOL and defrauding the government brought against him. He was caught off guard with these charges; he just followed the course set before him. As he look back on those events, he thinks his total military career up to that point should have been considered to get a full picture of his character and profile. He had goals to go to the highest position that he could and finish with a decorated service career in the military. (5). Since departing from the military, he has strived to serve his community and country in a civilian capacity the best he can. He’s gotten his Ph.D. in clinical counseling which allows him to help servicemen and women and their families. He’s been a pastor for the last 25 years in Arizona and California. He has worked with the chaplain association with Army, Navy, and Marine Corp commands. He asks that the Department for Correction of Military Records consider his story and adjust his other than honorable discharge, and grant him an honorable discharge upgrade. He has two sons in the military serving honorably with goals to make it their careers. He is very proud of both of them, and would like very much for them to be proud of their father's military service. He has certificates and awards on the wall of his office from military service. Thank you so much for your time and consideration. b. Permanent change of station orders sending him to Yuma Arizona. c. Medical narrative summary, detailing the facts surrounding his car accident in Germany. d. DD Form 1351,travel voucher showing he was paid 1401.00 on 23 January 1987. e. Military pay voucher (DA FM 2139) showing he was paid 591.00 on 23 January 1987. f. Military pay voucher showing he was paid 831.00 on 1 May 1987 g. Applicant’s sworn statement conducted by Special Agent W. Concerning the investigation of him defrauding the government by receiving casual payments and him being absent without leave (AWOL) in Germany prior to his car accident h. Character statement from X. detailing the applicant work performance. The applicant’s professional performance is outstanding. He is a diligent worker and is willing to accept an assignment delegated to him with unobstructed enthusiasm. He always decides on how an individual situation will reflect upon the Army before acting upon it. His leadership in supervising ability is excellent. He has the initiative required as a junior noncommission officer to complete problems with a ready solution. He is a definite morale builder and sets a fine example for his peers. He performs his assigned duties with a minimum of supervision. He is thorough, and accurate in his work, as well as cooperative, willing to assume added responsibilities, and assisting others. He gets along extremely well with his subordinates and supervises with understanding. (1). He is an extremely dependable and enthusiastic worker and initiates all required actions in a calm, collected, and confident manner. When confronted with not only everyday problems but unusual situations, he acts in a levelheaded manner. He has an excellent background in food service and puts this knowledge and professional experience to good use by continually demonstrating an exceptionally high degree of professional proficiency. While working with him from August 1987 to March 1988, he can truly say that he is a cut above the rest. In addition to being honest, and loyal to his unit, he maintains his personal affairs far above reproach from others. i. Character statement from X., believes the applicant should be retained in the United States Army. He has known him and his family a short period of time, (approximately 6 months). His bearing during and after duty hours are outstanding. His attitude toward the military life style is outstanding. He recommends the applicant should be retain in the military. 4. The applicant service record shows: a. He enlisted in the Regular Army on 15 October 1980. He reenlisted on 3 October 1983. b. His DD Form 458 (Charge Sheet) was unavailable for review. However according to block 21(Time Lost) on the DA Form 2-1 (Personnel Qualification Record), the applicant was absent without leave (AWOL) from 24 February 1987 to12 June 1987 while en route to Yuma Proving Ground, Arizona. c. On 24 March1988, he consulted with legal counsel. Counsel advised him of the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request for discharge, he acknowledged: * he was making the request of his own free will and he had not been subjected to any coercion * by submitting this request he was acknowledging he was guilty of the charge(s) against him or a lesser included offense * he understood that if the discharge request was accepted he could be furnished an Undesirable Discharge Certificate * he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws d. The applicant submitted an undated statement in his behalf. He acknowledged the wrongfulness of his actions that gave rise to these charges. He fully understand the difficulties created by his failure to properly report to his new duty assignment. It is clear to him now that he was not entitled to draw the pay for the months he was absent even though he anticipated recoupment of the money. At the time, he exchanged tickets. He expected to use the money later for the same purpose once problems with his family were resolved. This was wrong, and he accepts full responsibility for his actions. He has learned some valuable lessons from this experience. He has served honorably in the Army for over seven years. Although initially trained as an administrative clerk, he has spent most of this time as a cook. As the attached documents indicate, he has distinguished himself in his previous assignments with the 3/12th Cavalry; and the 258th Signal Company. (1). He has participated in major field exercises such as REFORGER (Return of Forces to Germany) and earned an Army Achievement Medal and the Good Conduct Medal. He has always tried to give 100% in these assignments. His selection for special details and assignments reflects the confidence his superiors have had in his abilities. He is currently on the standing promotion list and, but for his current status, would have been promoted as he had more than enough promotion points. At Yuma, he is currently a shift supervisor at the dining facility and have also assisted as an administrative clerk. In the course of his duties at Yuma, he has enrolled in the Food Service Apprenticeship Course. He has completed about six thousand hours of the required eight thousand hours. Additionally, in the past, he has completed courses at Central Texas College in the field of food services. (2). The circumstances underlying these charges reflect his attempts to resolve differences with his wife and secure the documents so that his family could travel back to the States with him. He was able to get his marriage back on track, and his daughter (age 3} and son (age 2) are with us at Yuma. (3). The money involved in these charges has been fully recouped from his pay. As indicated above, he has returned to duty and contributed to the successful dining facility operation at Yuma Proving Ground. He knows these facts do not excuse his lapse in judgment. He ask, however, that they be considered in determining the characterization that accompanies his discharge from service. He has made amends for what he has done, and have paid a price in the loss of his career and the financial difficulty of the recoupment. He requests that his future and his family's future not be clouded by an, other than honorable discharge. e. On 8 April 1988, the company commander recommended approval of the applicant’s request for discharge for the good of the service and recommended he receive an under other than honorable discharge for the following reasons. (1). The government has recouped all pay and allowances fraudulently paid to Specialist M. Except approximately $200.00 which will be recouped at the end of April 1988. (2). Discharge will be both expeditious and cost effective in terms of time and money for all concerned individuals and the command, thus in the best interest of the government. (3). Specialist (SPC/E-4) X. conduct and efficiency since arrival at U.S. Army Yuma Proving Ground has been of the highest caliber. This in no way excuses his past misconduct, but it’s notable that he has performed at United States Army Yuma Proving Ground as a diligent and motivated Soldier while pending investigation and charges. f Consistent with the chain of command's recommendation, on 22 April1988, the separation authority approved the applicant’s request for discharge for the good of the service with an under other than honorable conditions discharge. He would be reduced to the lowest enlisted pay grade. g On 9 May 1988, he was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial) with an under other than honorable conditions characterization of service. He had lost time from 24 February 1987 to 12 June 1987. 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, an individual 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. An Under Other Than Honorable Conditions Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 7. By regulation, a member who requests discharge as prescribed in chapter 10 may be issued an under other than honorable conditions discharge if he or she has been afforded the opportunity to consult with a consulting counsel. The member must certify in writing that he or she, understands that he or she may receive a discharge under other than honorable conditions. The member must understand the adverse nature and possible consequences of such a discharge. The member must personally sign a request for discharge. 8. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is 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. The applicant accepts responsibility for his actions and was remorseful with his application, demonstrating he understands his actions were not that of all Soldiers. 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. However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 From 214 for the period ending 9 May 1988 showing his character of service as under honorable conditions (General), and adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 15 October 1980 until 2 October 1983.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to Honorable. 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 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation states an individual 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. An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the Service. However, the separation authority may direct a General Discharge Certificate, if such is merited by the member's overall record during the current enlistment. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 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 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) AR20180009487 8 1