IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20180013574 APPLICANT REQUESTS: The applicant request in effect his discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 3286 (Statements for Enlistment) * Applicant Statement 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. 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 AR20130016641 on 17 June 2014. 3. The applicant states he was a third year generation military. He was in JROTC for three years and joined the delayed entry program. His training was in Fort Sill where he was an assistant platoon guide and was promoted after he completed training. a. He fathered a child at his first duty station, which was Fort Hood and was told by his First Sergeant to “Feed it, til it look like me!” He paid out of his pocket to support his child for 9 months. Once he was promoted to Specialist, he was approved to start receiving basic allowance for quarters (BAQ) from the Army. b. He was stationed in Germany, went to Fort Benning for jump school, and then to Fort Bragg. Once he got to Fort Bragg, his First Sergeant and Commander noticed he was receiving BAQ without being married and stopped it. He was then arrested for nonpayment of child support because he was receiving no pay. The no pay was due to him having to pay back the funds he was not supposed to be receiving. c. He was upset and disappointed at the Army; he was thinking correctly and went AWOL. He tried to make it as a civilian but was eventually caught and brought back to military control. He was young, afraid and would have retired had this incident not happen however he did serve honorable for three years and may qualify for military services. 4. On 12 June 1985, the applicant enlisted in the Regular Army at the age of 18. 5. On 19 April 1989, the applicant was charge for being absent without leave (AWOL) from on or about 13 March 1989 and remained absent in desertion to on or about 26 June 1989; he went AWOL again on 27 June 1989 and was subsequently dropped from the rolls on 28 June 1989. 6. On 29 June 1990, he was charged for being AWOL twice; once from on or about 13 March 1989 until desertion and another time, on or about 27 June 1989. 7. On 11 April 1991, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He signed a request for discharge for the Good of the Service. a. The applicant's chain of command recommended approval of his request and the appropriate separation authority approved the applicant's request. b. The appropriate authority approved the applicant’s request for the good of the service, directing the applicant be discharged under other than honorable conditions. 8. On 19 June 1991, the applicant was discharged accordingly. He completed 4 years, 2 months, and 24 days net active service; approximately 644 days lost. 9. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 10. The applicant states he fathered a child at his first duty station, which was Fort Hood and was told by his First Sergeant to “Feed it, til it look like me!” He paid out of his pocket to support his child for 9 months. Once he was promoted to Specialist, he was approved to start receiving basic allowance for quarters (BAQ) from the Army. His First Sergeant and Commander noticed he was receiving BAQ without being married and stopped it. He was then arrested for nonpayment of child support because he was receiving no pay. The no pay was due to him having to pay back the funds he was not supposed to be receiving. His record shows he received an Army Achievement Medal, an Army Good Conduct Medal, and earned his Parachutist Badge. Neither the applicant nor his records provide evidence of a dependent. 11. The applicant requests in effect an upgrade so that he may receive benefits. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. 12. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published guidance for consideration of discharge upgrade requests. The Board discussed his service, the frequency and length of his AWOLs, his statement and clemency determination guidance. The applicant did not provide any post-service conduct documents for the Board to consider and Board determined that there was insufficient evidence of mitigating factors to support an upgrade of his discharge. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. 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 to amend the decision of the ABCMR set forth in Docket Number AR20130016641 on 17 June 2014. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. 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. 3. 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. 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, 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. 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 or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.