ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20180010657 APPLICANT REQUESTS: * upgrade of his under other than honorable discharge to honorable * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 believes that the record is unjust because he enlisted to fight for his country and his discharge would have been honorable if not for the death of a close family member. He states the grandfather that raised him passed away unexpectedly and he took the loss very hard. The applicant states he made a bad choice by turning to drugs to cope with the loss. He shares he has proven to be an upstanding citizen after the passage of several decades, in spite of the choices he made many years before. The applicant states the discharge took place approximately 37 years ago and he has not used drugs since that point in his life. He has become a committed father, church member, and is employed full-time at a university. He shares, he has owned and operated a small business since 2002. He states he is now in a position to purchase a home for himself and his family, and states, with an honorable discharge, he would qualify for a Department of Veterans Affairs (VA) Loan. 3. The applicant provides a copy of his DD Form 214, showing he was discharged with a under other than honorable conditions character of service in item 24 (Character of Service). 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 22 June 1979. b. He accepted non-judicial punishment (NJP) under the provisions of Article 15 on 20 August 1980, for absenting himself from his unit on or about 4 to on/about 6 August 1980, without authority. c. The applicant’s record was void of facts and circumstances which led to him undergoing court-martial proceedings. However, on 23 October 1980, he was found guilty by a summary court-martial in accordance with Summary Court-Martial Order Number 3, dated 24 October 1980, issued by Headquarters, Experimentation Support Command, U.S. Army Combat Developments Experimentation Command, Fort Hunter Liggett, CA, of four specifications of absenting himself from his required place of duty without authority on or about: * 17 September 1980 * 22 to 23 September 1980 * 3 to 6 October 1980 * 12 to 14 October 1980 d. The court sentenced him to reduction to private/E-1, confinement at hard labor for twenty-five (25) days, (no previous convictions considered.) The sentence was adjudged on 23 October 1980. e. On 24 October 1980, the convening authority approved the sentence and ordered it executed. The record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review. The record of trial was examined and the findings and sentence were determined to be correct and in law and fact on 26 October 1980. f. He accepted NJP under the provisions of Article 15 on 10 December 1980 for absenting himself from his unit on or about 14 to on/about 29 November 1980, without authority. g. On 10 December 1980, the applicant’s immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of Army Regulations (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14 for misconduct based on actions consisting of discreditable involvement with civil authorities: h. The applicant acknowledged receipt of the commander’s intent to separate him on 11 December 1980. He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He did not provide a statement on his behalf. He acknowledged he understood that he would be ineligible to apply for enlistment in the United States Army for a period of two years after discharge i. He was recommended for separation by his immediate commander on 10 December 1980 and his intermediate commander on 11 December 1980. j. The separation authority approved the applicant's discharge on 31 December 1980, under the provisions of AR 635-200, paragraph 14-33b(1) for misconduct based on frequent incidents of discreditable nature. He ordered the applicant be furnished a Under Other than Honorable Discharge Certificate. k. The applicant was discharged on 13 January 1981. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 14 for misconduct- frequent incidents of a discreditable nature with civil or military authorities. He was given a under other than honorable conditions discharge. He completed 1 year, 6 months, and 9 days of active service. Item 29 (Dates of Time Lost During This Period), shows the applicant had lost time from/to: * 4 to 6 August 1980 * 22 to 23 September 1980 * 3 to 6 October 1980 * 12 to 14 October 1980 * 24 October 1980 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 15-185 (ABCMR)), 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. 7. By regulation 635-200, Soldiers with a record of frequent incidents of a discreditable nature with civilian or military authorities may be eliminated for misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 8. The Board should consider the applicant’s submission in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of on-servie mitigating factors; the applicant provided his statement, but no additional evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence to include the short term of honorable service completed prior to a pattern of misconduct which led to the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X 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. 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) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b provides that 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. Paragraph 14-33b(1), of the version in effect at the time, provides members are subject to separation under the provisions of this section for patterns of misconduct related to frequent incidents of discreditable nature with civil or military authorities. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 3. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for the 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.