IN THE CASE OF: BOARD DATE: 10 July 2020 DOCKET NUMBER: AR20180011005 APPLICANT REQUESTS: reconsideration of a discharge upgrade from under other than honorable conditions (UOTHC) to honorable or general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * North Carolina Department of Military and Veteran Affairs letter, dated 20 July 2018 * Self-authored letter, dated 18 June 2018 * DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 5 April 1982 * DA Form 3835 (Notice of Unauthorized Absence from United States Army), dated 6 January 1983 * DD Form 1407 (Dependent Medical Care), dated 1 March 1983 * Memorandum, subject: Request for Discharge for the Good of the Service, dated 2 March 1983 * DA Form 31 (Request and Authority for Leave), dated 4 March 1983 * DA Form 3836 (Notice of Return of US Army Member from Unauthorized Absence), dated 18 March 1983 * DA Form 3975 (Military Police Record), undated * DA Form 2496 (Disposition Form), dated 10 June 1983 * Memorandum, subject: Request for Discharge for the Good of the Service, dated 15 June 1983 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 June 1983 * Character reference letter from Mr. H_, dated 6 July 2018 * Character reference letter from Ms. R_, dated 6 July 2018 * Character reference letter from Pastor A_, dated 16 July 2018 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080011590 on 4 November 2008. 2. The applicant states that he believes his character of service should be changed because he had become very depressed and overloaded. He contests that being a new private (PVT)/E-1 and recently married, the stressors of life had really gotten to him. His brothers were in the streets and not assisting his mother. Drug dealers were all around the house that his mother was living in and that remains as such today. The stress had become too much for him to handle. He tried to explain this to his leadership, but no one understood his hurt and pain. His mind had gotten the best of him. a. He admits to making a huge mistake, but at the time his family really needed him, as both of his brothers were killed in the streets and his wife of two years had left him. His wife was using drugs and was not taking care of his 5 year old daughter. He adds that if you check his history, he never caused any trouble and was on task. As such, he asks that the Board consider changing his character of service based upon his military service history and the provided character reference letters. If he could go back in time with what he knows now, he would have handled things differently. He has always obeyed the laws of the land and never gotten in trouble. His actions at the time were the result of bad decision making, but at the time, he thought that it was his only option. b. In 2013 he had a stroke resulting in his inability to speak. As such he is in need of medical care. He prays that the Board will have a change of heart resulting in his discharge being upgraded from UOTHC. 3. A review of the applicant’s available service records reflects the following: a. On 28 December 1979 he enlisted in the United States Army Reserve (USAR) under the Delayed Entry Program (DEP). b. On 8 July 1980 he enlisted in the Regular Army at the rank of PVT/E-1 for 3 years. c. On 29 August 1980 he completed Initial Entry Training (IET) for military occupational specialty 64C (Truck Driver). d. On 22 October 1980, while assigned to the 21st Replacement Detachment, Fort Hood, TX, he received an Article 15 for being absent without leave from 10 October through 21 October 1980. As a result, he forfeited $112 of his pay for one month. e. On 22 October 1981 he was advanced to the rank of private first class (PFC)/ E-3. f. On 21 June 1982 he was assigned to the 3rd Supply and Transportation Battalion, 3d Infantry Division, in Germany. g. On or about 28 November 1982, he departed his unit without authority and remained absent until on or about 1 March 1983. h. On 1 March 1983 he was charged with being absent without leave (AWOL). i. On 2 March 1983 the applicant requested to be discharged for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. Prior to submitting this request, he was advised and subsequently waived his right to counsel, acknowledged the impact of an UOTHC discharge and waived his right to submit a statement on his behalf. His submitted request was recommended for approval by his legal counsel and commander. j. On 17 March 1983 his division commander recommended approval of his request citing that the nature, gravity and circumstances surrounding his offenses were sufficiently serious to warrant elimination from the service. k. On 10 June 1983, a DA Form 2496 (Disposition Form) was generated indicating that the applicant had previously received two Article 15s. l. On 15 June 1983, the submitted request for discharge was approved and his service was to be characterized as UOTHC. m. On 28 June 1983 he was reduced from PFC to PVT effective 29 June 1983. n. On 29 June 1983 he was discharged. The DD Form 214 he was issued shows his character of service as UOTHC and shows he had lost time from 10 - 20 October 1980 and 28 November 1982 through 28 February 1983. 4. The applicant provides the following: a. DA Form 2627, dated 5 April 1982, reflective of him being punished under Article 15 of the Uniformed Code of Military Justice (UCMJ) for violating Article 92, dereliction of duty by falling asleep while on duty. His punishment was reduction to the rank of private second class (PV2)/E-2, forfeiture of $86.00, and 14 days of extra duty. b. DA Form 3835, dated 6 January 1983, showing authorities were notified of his absence (AWOL) on or about 28 November 1982; he was dropped from the rolls on 27 December 1982. c. DD Form 1407 (Dependent Medical Care), dated 1 March 1983, that shows he had two dependents (wife and daughter). Further noted is that his wife was receiving medical care at Wilson Memorial Hospital. d. Memorandum, subject: Request for Discharge for the Good of the Service, dated 2 March 1983, reflective of his request for discharge through the United States Army Personnel Control Facility (PCF) commander. The document further notes that at the time of submission he had been AWOL for approximately 93 days (28 November 1982 to 28 February 1983), and the reason for his unauthorized absence was noted as “family problems,” citing that his wife was abusing drugs and was negligent in the care of their child. He waived his right to legal counsel and to submit a statement on his behalf. He acknowledge the impact of a UOTHC discharge. e. DA Form 31, dated 4 March 1983, reflective of leave being granted from 4 March 1983 for an indefinite period (excess leave, i.e., leave without pay and allowances). f. Memorandum, subject: Request for Discharge for the Good of the Service, dated 17 March 1983 – see 3h. above. g. DA Form 3836, dated 18 March 1983, reflective of the termination of apprehension efforts as he had been returned to military control following the period of absence from 28 November 1982 through 1 March 1983. h. DA Form 3975 reflective of him surrendering himself to authorities and being released to the Personnel Control Facility. i. DA Form 2496, dated 10 June 1983, reflective of his request for discharge being reviewed by the Staff Judge Advocate, who further offered no legal objection to his discharge under the provisions of Chapter 10, AR 635-200. j. Memorandum, subject: Request for Discharge for the Good of the Service, dated 15 June 1983, reflective of his request for discharge being approved by the commander with general court-martial jurisdiction. k. DD Form 214, dated 29 June 1983 – see 3l. above. l. Character reference letter from Mr. H_, dated 6 July 2018, reflective of his interaction with the applicant for many years. He further provides that the applicant is seeking benefits for previous service in the Army and is in need of additional assistance due to his health condition. Mr. H_ is a minister. m. Character reference letter from Ms. R_, dated 6 July 2018, reflective of her assessment as the applicant’s medical case manager, wherein she provides that the applicant is determined, kind, and extremely reasonable. She has never had any issues with him as a client. n. Character reference letter from Pastor A_, dated 16 July 2018, reflective of his association with the applicant as his pastor, prior to his failing health. He further provides that the applicant was enrolled in Bible college and was a faithful student until the trouble with his speech arose. He recommended that the applicant’s request for a discharge upgrade be granted to assist with his health benefits. 5. On 4 November 2008, in Docket Number AR20080011590 the board denied the applicant’s request for a discharge upgrade citing that the applicant had a record of AWOL prior to getting married and that he also had a record of using controlled substances himself. Further noted is that the Army does not have nor has it ever had a policy to automatically upgrade discharges. When the applicant requested a discharge, he indicated that he understood that there was no automatic upgrade of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the ABCMR if he wished a review of his discharge. As such they determined that the evidence presented did not demonstrate the existence of a probable error or injustice. 6. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement (circumstances regarding the period of AWOL), 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 in-service mitigating factors in support of a clemency determination and also found the letters of reference he provided to be insufficiently mitigating in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20080011590, dated 4 November 2008. 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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 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 3-7c provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. d. Chapter 10 (Discharge in Lieu of Trial by Court Martial) provides that a Soldier who has committed an offense or offenses, the punishment for which under the UCMJ and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. After receiving counseling, the Soldier may elect to submit a request for discharge in lieu of trial by court-martial. The Soldier will sign a written request, certifying that he/she may receive a discharge under other than honorable conditions and further understands the adverse nature of such a discharge and the possible consequences. A Soldier may waive consultation with counsel. The separation authority will be a commander exercising general court-martial jurisdiction or higher authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. For Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be improper. 3. 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 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 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 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 //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011005 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1