ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20180015408 APPLICANT REQUESTS: in effect, his under other than honorable conditions (UOTHC) discharge be upgraded, his honorable discharge be documented on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 January 1988, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 for the period ending 20 January 1988 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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 he has an honorable discharge that is not documented on his DD Form 214. 3. The applicant enlisted in the Regular Army on 3 November 1981. He executed an immediate reenlistment on 27 December 1983. 4. The applicant was dropped from the Primary Leadership Development Course on 3 May 1984 for disciplinary reasons due to an altercation with another student. 5. The applicant's check cashing privileges were suspended for issuing two dishonored checks (second offence) on 14 September 1984. 6. The applicant's pass privileges were revoked on 4 September 1987 and he was restricted to the battalion area on 11 September 1987. 7. Court-martial charges were preferred against the applicant on 11 September 1987 for violations of the Uniform Code of Military Justice (UCMJ). The DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about 1 September 1987 through on or about 4 September 1987, failure to go to his appointed place of duty on or about 8 September 1987, and breaking restriction on or about 9 September 1987. These charges were withdrawn by his command on 1 October 1987. 8. Court-martial charges were preferred against the applicant on 1 October 1987 for violations of the UCMJ. On this occasion, he was charged with: * being AWOL, from on or about 1 September 1987 through on or about 4 September 1987 * failure to go at the prescribe time to his appointed his place of duty, on or about 8 September 1987 * being AWOL, from on or about 16 September 1987 through on or about 17 September 1987 * breaking restriction, on or about 9 September 1987 * breaking restriction, on or about 16 September 1987 9. Court-martial charges were preferred against the applicant on 14 October 1987 for violations of the UCMJ. On this occasion, he was charged with behaving with disrespect toward a superior commissioned officer and willfully disobeying a lawful command from a superior commissioned officer, each instance on or about 13 October 1987. 10. The applicant consulted with legal counsel on 16 October 1987. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf; however, he neither elected nor declined to exercise this right. 11. Court-martial charges were preferred against the applicant on 28 October 1987 for violations of the UCMJ. On this occasion, he was charged with missing his unit's movement, on or about 4 September 1987. 12. The applicant's company commander endorsed the applicant's Request for Discharge for the Good of the Service on 2 December 1987. In addition to the court-martial charges, his commander noted the applicant had tested positive for cocaine on 11 September 1987. 13. The separation authority approved the applicant's request for discharge on 8 December 1987, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial and directed the applicant be discharged UOTHC. 14. The applicant was discharged on 20 January 1988. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial. His DD Form 214 shows: a. He was discharged in the rank/grade of private/E-1; b. He was credited with completing 5 years, 11 months, and 23 days of net active service; c. He was awarded or authorized the: * Army Achievement Medal (2nd Award) * Army Good Conduct Medal * Noncommissioned Officer Professional Development Ribbon (Numeral 1) * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Grenade Bar (Hand Grenade) * Sharpshooter Marksmanship Qualification Badge with Pistol Bar d. He was credited with two periods of service resulting from immediate reenlistments this period: 811103 ? 831226; 831227 ? 880120; e. His service was characterized as UOTHC; and f. He had three periods of lost time: 870901 ? 870903; 870916 – 870916; 871031 ? 880120. 15. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 16. The applicant has not provided and the available record contains no evidence of any active duty service prior to 3 November 1981, nor does it contain an indication that the applicate received a separate DD Form 214 for his first enlistment. 17. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: Based upon the administrative notes found by the analyst of record, in addition to the annotation of the applicant’s completion of first full term of service, the Board recommended partial relief to the applicant. 1. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found some evidence of previous honorable service that should be reflected on the applicant’s DD Form 214. 2. However, the Board found insufficient evidence that the applicant’s periods of honorable service completely mitigated the misconduct. Therefore, the Board found that the discharge characterization was equitable. 3. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 entered by the analyst of record below the signature line, 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 3 November 1981 until 20 January 1988.” 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 under other than honorable conditions. 3. The Board recommends no personal appearance. 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): A review of the applicant's record shows his DD Form 214, for the period ending 20 January 1988, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides: a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Formal hearings are granted only when it is determined that a case is so complex, or the records so incomplete that only sworn testimony can provide the necessary information. 3. Army Regulation 635-5 (Separation 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 and states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. A DD Form 214 is issued only if a Soldier has a complete separation of one day or more. 4. Army Regulation 635-200 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 provides that a member who has committed an offense or offenses 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. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. 5. 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 or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015408 0 5 1