ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 August 2019 DOCKET NUMBER: AR20180011426 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to an honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 would like to have his discharge upgraded because this is all that he has and he would at least like to try. He also states that he went on leave and couldn’t get a flight out of Germany, so he went back on base and was told he would either have to go back work or leave to go on ordinary leave. He went back to the airport and attempted to get another flight and after three days, he was successful. On the last day of his leave, he asked his wife to get the money so he could return to Germany, but they had no money in the bank. He went to Fort Hood for assistance and was sent to Oklahoma, where he was told by a Captain there that his First Sergeant did not want him back. He was confused because he was a stellar Soldier who beat out fellow non-commissioned officers to get advanced schooling. He had plans to retire and it bothers him that he did not get the opportunity. 3. A review of the applicant’s service records shows: a. He enlisted on 1 April 1980 in to the Regular Army (RA). He served in Germany starting 15 September 1982 and was declared absent without leave (AWOL) on 13 September 1983 to 12 October 1983, and dropped from rolls (DFR) on 13 October 1983. He turned himself in at Fort Sill on or about 15 October 1983. b. A DA Form 458 (Charge Sheet) shows his command preferred court marital charges on 3 November 1983 on him for one specification of AWOL for a period of 33 days from 13 September 1983 to 15 October 1983. c. He consulted with legal counsel on 19 October 1983 and subsequently requested discharge under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * the maximum punishment if found guilty * if his request was accepted, he may be discharged under other than honorable conditions * if approved, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration, and that 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 because of an under other than honorable conditions discharge d. On 10 November 1983, his chain of command recommended approval of his request for discharge, under the provisions of AR 635-200, Chapter 10 with an under other than honorable characterization of service. The immediate commander the applicant has become disillusioned with the military, and that he went AWOL for personal reasons. e. Consistent with the chain of command's recommendation, on 1 December 1983, the separation authority approved the applicant’s request for discharge for the good of the service with an under other than honorable conditions discharge, and directed he would be reduced to private/E-1. f. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged accordingly on 13 December 1983, under the provisions of AR 635-200, Chapter 10 with an under other than honorable conditions characterization of service. He separated on temporary records and Soldiers Affidavit. He had 32 days of lost time from 13 September 1983 to 14 October 1983. His DD Form 214 is blank because his record was not available at the time of discharge, but his record was eventually sent to the record holding facility from Germany. 4. 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. The Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)), Army Review Boards Agency (ARBA), is authorized to issue or reissue DD Forms 214. 6. 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. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the Service. 7. By regulation, AR 635-200, a member who requests discharge as prescribed in chapter 10 will be given a reasonable time (not less than 72-hours) to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. Consulting counsel will advise the soldier accordingly. Commanders will insure that a soldier will not be coerced into submitting a request for discharge for the good of the Service. 8. By regulation, AR 635-5 (Personnel Separations – Separation Documents), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 9. By regulation, AR 635-8 (Separation Processing and Documents), currently in effect, on direction of the ABCMR or Army Discharge Review Board, or in other instances when appropriate, the DASA RB, ARBA, is authorized to issue or reissue DD Forms 214. Once a DD Form 214 has been issued, it will not be reissued except under specified circumstances including when it is determined that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 (Correction to DD Form 214). 10. 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 not 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the lengthy period of AWOL, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Chapter 10, of this regulation, states that a soldier 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. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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. c. 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. d. An under other than honorable conditions discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service. 3. Army Regulation (AR) 635-5 (Personnel Separations – Separations Documents), prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214 (Certificate of Release or Discharge from Active Duty). 4. AR 635-8 (Separation Processing and Documents), currently in effect, prescribes the transition processing function of the military personnel system, including preparation of the DD Form 214. 5 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011426 4 1