ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 8 October 2019 DOCKET NUMBER: AR20180012964 APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) characterization of service be upgraded to an honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * Miscellaneous laudatory documents 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 served his country honorably and was proud of his service. He always volunteered and stepped up. He was a noncommissioned officer for four and a half years of his six years of service. Right before his discharge, he was experiencing family problems. He was separated from his family for over a year while stationed in Korea. When he returned to Fort Knox, Kentucky, he was trying to repair his marriage and family life. He had been gone for one year and his wife could not cope. He repeatedly tried to request time to go home, but was denied access to his family. He went absent without leave (AWOL) to try to save his family. Then, after forty-four days, he returned to his unit on his own accord. They offered him specialist/E- 4 (he was a sergeant promotable at the time this happened) or a discharge. He took the discharge. However, he thought he was being offered a general, under honorable conditions characterization, not a UOTHC. 3. The applicant submits one hundred pages of miscellaneous laudatory documents consisting primarily of awards, certificates, evaluations, and letters of appreciation. Though not cited individually, all are provided for the Board’s review. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 4 April 1979 and reenlisted on 1 April 1983. b. On 2 August 1985, he was charged with having been AWOL from Fort Knox, Kentucky for a period of approximately two months. c. On 5 August 1985, in consultation with counsel, he submitted a “Request for Discharge for the Good of the Service.” He acknowledged: * he was making the request voluntarily and had not been coerced * he was guilty of an offense that authorized imposition of a bad conduct or dishonorable discharge * he had consulted with counsel and been fully advised of his rights * he understood that if his request was accepted, his service could be characterized as UOTHC * he understood if issued a UOTHC, he would be deprived of many or all Army benefits, and could be ineligible for Veterans Administration benefits, and rights and benefits under Federal and State laws * he could expect to encounter substantial prejudice in civilian life as a result of a UOTHC * once submitted, his request could only be withdrawn with the consent of the general court-martial convening authority d. On 15 August 1985, consistent with the recommendations of the chain of command, the separation authority approved his “Request for Discharge for the Good of the Service”, directed his service be characterized as UOTHC, and that he be reduced to the lowest enlisted grade. e. On 17 September 1985, the applicant was discharged in accordance with Army Regulation 635-200 (Personnel Separations—Enlisted Personnel), chapter 10, in effect at the time. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 12a (Date Entered AD this Period), year 79, month 09, day 04 * item 12c (Net Active Service this Period), 6 years, 2 months, 13 days * item 13 (Decorations, Medals, Badges), Rifle M-16 Expert Qualification Badge, Army Service Ribbon, Pistol Caliber 45 Expert Qualification Badge, Overseas Service Ribbon, Army Commendation Medal, Good Conduct Medal, Noncommissioned Officer Professional Development Ribbon * item 18 (Remarks), includes the notation “immediate reenlistment this period: 830401” * item 24 (Character of Service), under other than honorable conditions * item 28 (Narrative Reason for Separation), for the good of the service—in lieu of court-martial 5. The applicant applied to the Army Discharge Review Board for an upgrade. His appeal was denied on 5 April 1995 in case number AD92-02532. 6. By regulation (AR 635-200), a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 7. The Board should consider the applicant’s petition and his service record 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 on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. Based upon the lengthy period of AWOL which led to the applicant’s separation, a lack of post-service character evidence to show that he has learned and grown from the events leading to his separation, the Board concluded that the characterization of service received at the time of discharge was appropriate. However, the Board did note that he applicant did have a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that be corrected to more accurately reflect 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 adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 4 April 1979 until 30 March 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. 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) 635-8 (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). 3. AR 635-200 (Personnel Separations—Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides 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. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. . Consulting counsel were required to advise the member concerning the elements of the offenses charged, burden of proof, possible defenses, possible punishments, the provisions of Chapter 10, the requirement of voluntariness, the type of discharge normally given under Chapter 10, rights regarding the withdrawal of the request, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 4. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic policy for the separation of enlisted personnel. a. 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. 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. 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. ABCMR Record of Proceedings (cont) AR20180012964 4 1