ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 May 2019 DOCKET NUMBER: AR20180014301 APPLICANT REQUESTS: * Upgrade his under other than honorable conditions discharge to honorable * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for Army Discharge Review Board). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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, in effect, his father was temporarily paralyzed and he needed to be there to care for him; his mother was also sick and could not help. a. He was on leave when he became absent without leave (AWOL); he could not return because of his parents' medical conditions. In addition, there were no other family members who could help, so he had to cook, clean, feed, and care for his parents. If this had not happened, he would have happily fulfilled his service obligation and probably would have reenlisted. Nonetheless, his parents came first; they gave him life and took care of him, so he felt obligated to care for them. He hopes the Board will understand his situation. b. He now has stage-4 colon cancer and is disabled due to a back injury; before he dies, he would like his character of service upgraded. He states, he did right by his parents, and now asks the Board to do right by him. He never wanted to go AWOL; his grandfather and one of his family members fulfilled their time in the Army, and an uncle was in the Navy. He looked up to them and planned on completing his service obligation; were it not for his current medical conditions, he would reenter the Army now to fulfill his enlistment contract. 3. The applicant's service records show: a. He enlisted into the Regular Army on 7 November 1978 for a 3-year term; he was 18 years old. Following initial training, orders assigned him to Korea; while in Korea, his chain of command promoted him to private first class (PFC)/E-3, effective 7 November 1979. On 17 February 1980, he completed his tour in Korea. Orders reassigned him to Fort Campbell, KY; he was due to arrive on 27 March 1980. b. On 27 March 1980, his Fort Campbell unit reported him AWOL; on 6 May 1980, the applicant surrendered himself to the Fort Campbell replacement detachment. The replacement detachment commander prepared a memorandum in which he stated the applicant freely admitted to having been AWOL and claimed he was helping his disabled father. The commander also noted the character of the applicant's duty performance had been good and his continued military service was possible. c. On 16 June 1980, the applicant went AWOL again from his Fort Campbell unit; his unit dropped him from Army rolls on 16 July 1980. On 5 September 1980, the applicant returned to military control with an Army AWOL team near his home; the AWOL team sent him back to his Fort Campbell unit. d. On 12 September 1980, the applicant's Fort Campbell commander preferred court-martial charges against him for two periods of AWOL: 27 March until 6 May 1980 (40 days) and 16 June until 5 September 1980 (81 days). On 16 September 1980, after consulting with counsel, the applicant requested discharge for the good of the service, in-lieu of trial by court-martial, under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one had subjected him to coercion and counsel had advised him of the implications of his request. He acknowledged he was guilty of the charges and elected to submit a statement in his own behalf. He essentially wrote the following: (1) He admitted his guilt and knew what he had done was wrong; he went AWOL in the best interests of his father and family. His father and family needed him more now than when he was AWOL. (2) He requested an under honorable conditions character of service because he had never done anything wrong or bad while on active duty; his chain of command never gave him nonjudicial punishment and never had to counsel him for misconduct. His father was now permanently disabled due to his back; he was unable to work. Despite not really able to work either, his mother had gotten a job in order to pay the bills. As a result, she could not care for his father; his father required someone to be there at all times and the applicant was the best person to do this. e. The applicant's brigade commander recommended approval of the applicant's request, stating he had interviewed the applicant at length. The commander affirmed the applicant was not motivated to remain in the Army; the applicant had refused his offer for leniency in exchange for being a good Soldier, and obtaining a personal hardship discharge. The commander stated the best interests of the Army would be served by the applicant's separation. f. On 2 October 1980, the separation authority approved the applicant's request and directed his separation under other than honorable conditions; he also ordered the applicant's reduction from PFC to private/E-1. On 7 October 1980, he was discharged accordingly; his DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he had completed 1 year and 7 months of his 3-year enlistment, with lost time for two periods (800327 to 800505 and 800616 to 800904). He was awarded or authorized two marksmanship qualification badges. 4. Regarding the applicant's request for a personal appearance, AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, a Board panel or the Director, ABCMR may authorized a request for a hearing on a case-by-case basis. 5. The applicant contends he was AWOL because his parents' medical conditions required his presence to care for them; he now has stage-4 cancer and a disabling back injury. a. Per the UCMJ, the maximum punishment for AWOL in excess of 30 days included a punitive discharge; Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and offered in-lieu of trial by court-martial. b. In reaching its determination, the Board should also consider the statements and evidence the applicant provided in conjunction with his military service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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 discussed the nature of the applicant’s misconduct, his personal statement of explanation and the commander’s statement referring to hardship and determined that a clemency determination can be applied in this case. The Board found that a personal appearance was not warranted. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board also concurs with the administrative corrections as noted below. 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. In addition to the administrative notes annotated by the Analyst of Record (below the signature), 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 amending his DD Form 214 item 13a (Character of Service) to reflect “Under Honorable Conditions”. 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 a granting the applicant a personal appearance and upgrading the characterization of his discharge to Honorable. 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): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. AR 600-8-22 states the Korea Defense Service Medal is authorized for Soldiers who served on active duty in support of the Republic of Korea's defense during the period 28 July 1954 to a date yet to be determined by the Secretary of Defense. The Soldier must have been assigned for at least 30 consecutive days. 3. As a result, amend his DD Form 214 to show the Korea Defense Service Medal. REFERENCES: 1. Title 10, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Commanders were to ensure the request for discharge was a personal decision, free of coercion, and that the Soldier was given a reasonable amount of time to consult with counsel. Once the Soldier made the decision to request discharge, he/she had to put it in writing and counsel was required to sign as a witness. Once approved, an under other than honorable conditions character of service was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed Article 86 (AWOL for more than 30 days) included a dishonorable discharge. 4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 7-64c (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 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 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. 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. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings on a case-by-case basis. ABCMR Record of Proceedings (cont) AR20180014301 5 1