ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20180010387 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Letter of Recognition * Letters of Support (x3) * 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 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 is requesting an upgrade of his under other than honorable conditions discharge to honorable. He has worked for one company the past 23 years and is now unable to work and receiving long term disability. a. He served honorably through his tour in Korea and received excellent performance reports up until that point. He attempted to get assistance with the upgrade request previously, but was met with disappointment. It was not until he went to the Disabled American Veterans Office that someone offered to help. b. His mother passed away when he was 10 years old and his father gave him and four siblings up to a children’s home. His siblings were all adopted, but he went to several foster homes where no one really cared for him, but just wanted him for the money the state provided. He ran away numerous times because no one really wanted a child over the age of 10. It was not until a recruiter introduced him to the concept of family through service to the nation that he found appealing and joined at age 21. a. c. He did very well in the military and was commended often by officers and sergeants for doing a good job which led to his promotions. He even served in Korea where he repaired tracks on the DMZ (Demilitarized Zone). It was there he got to enjoy the concept of family as his supervisor and other Soldiers he served with watched his back. d. He met a young lady while on leave and having never experienced love before, he was overjoyed. He could not bring himself to leave her after she begged him to stay. His conscious got the best of him and he finally returned to Fort Monroe only to face the consequences. He did not realize, nor was he told about the severity of his actions. e. He had a stroke in 2007, but given the opportunity, he would have done anything to protect his military family and himself. He has felt disgrace over 38 years and asks for forgiveness. He finally has a family that loves him and he loves dearly and he has given his best to everything. 3. The applicant provides: a. A letter of recognition from XX which states the applicant demonstrated excellent supervisory skills and showed great initiative on a project for her complex. He and a co- worker displayed a high level of quality work and demonstrated a strong work ethic. b. A letter of support from his daughter, XXX, which noted he came into her life when she was only 6 years old. He has since provided a caring, loving, and stable environment for her and her mother for the past 38 years. He has been a loving father and great role-model as a grandfather. A man of great moral character, honest, hardworking, and willing to help anyone in need. c. A letter of support from XX, a human resources representative from his last job, which states he was a hard worker with high work ethic which had an impeccable attendance record. The company lost a hard working technician when he was no longer able to work. She has also known him and his family personally for 15 years and he is always available to help others. He is a man of good character, honest, and willing to go the extra mile. d. A letter of support from XXX, his wife’s former supervisor, which states the applicant would work his regular job and then fill in to assist them if they were short in staff. They found him to be loyal, trustworthy, and a hard worker. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 1 February 1977. b. He served in Korea from 27 July 1977 to 28 July 1978. a. c. On 11 December 1979, court-martial charges were preferred on the applicant for being absent without authority from 10 August 1979 to 20 November 1979. d. On 11 December 1979, after consulting with legal counsel 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 * he was guilty of the charges against him or of a lesser included offense * he does not desire further rehabilitation or further military service * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * he would be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the Veterans Administration, * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life e. On 11 January 1980, consistent with the chain of command recommendations, the separation approval authority approved the applicant’s request for discharge for the good of the service. He would be issued an Under Other Than Honorable Condition Discharge Certificate and reduced to the lowest enlisted pay grade. f. On 18 January 1980, he was discharged from active duty with an under other than honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 8 months, and 5 days of active service with 101 days lost time. It also shows he was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar. g. 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. 5. By regulation,(AR 635-200) 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 Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 6. By regulation, (AR 15-185) an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 1. 7. 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: 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 reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that partial relief was warranted. The Board considered the period of honorable service completed prior to a one time AWOL offense, the demonstrated growth shown by the character evidence submitted by the applicant and the demonstrated remorse for the misconduct. Based on a preponderance of evidence, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. 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 the applicant a DD Form 214 for the period of service ending 18 January 1980 showing in item 24 (Character of Service)- "Under Honorable Conditions (General)." 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. 8/19/2019 X CHAIRPERSON Signed by: 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 Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is 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 Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 3. 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. 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 regarding equity, injustice or clemency determinations. 1. 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.