ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20180016072 APPLICANT REQUESTS: His under other than honorable condition (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Force of the United States) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, 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 would like his discharge upgraded to receive benefits. He served as a model Soldier from 1974 to 1987, until he was discharged. His commander ordered him to divorce his wife; paperwork was mailed to his wife in effect of those orders. He lost his wife and his daughter, who was 11 at the time; his wife and daughter were more important to him then his career. He requested leave to go and try to get his family back. He was gone longer than he expected; he failed at trying to get his family back. In effect, he lost his wife, his daughter, and his career. 3. The applicant enlisted in the Regular Army on 1 April 1974. He was honorably discharged on 16 March 1976 for the purpose of immediate reenlistment. His DD Form 214 confirms this period of service was considered honorable. 4. The applicant reenlisted in the Regular Army on 17 March 1976 and 5 January 1982. 5. The applicant was promoted to the rank/grade of staff sergeant (SSG)/E-6 effective 8 August 1982. 6. The applicant reenlisted in the Regular Army on 25 October 1984. 7. Between the applicant's date of enlistment and 25 October 1984, the date on which he last reenlisted, he was awarded or authorized the Army Commendation Medal (1st Award), Army Good Conduct Medal (4th Award), National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon with Numeral 3, and the Driver and Mechanics Badge. 8. The applicant was reduced from the rank/grade of SSG/E-6 to the rank/grade of sergeant (SGT)/E-5, effective 23 February 1987. It appears he was further reduced to the rank/grade of specialist four (SP4)/E-4; however, the effective date of that reduction cannot be determined. 9. Court-martial charges were preferred against the applicant on 12 August 1987, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit without authority, from on or about 27 June 1987 through on or about 10 August 1987. 10. The applicant consulted with counsel on 12 August 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. His election shows he did not intend to submit a statement in his behalf. 11. Subsequently, after speaking with counsel, the applicant submitted a request for excess leave. His request was granted and he was placed in an excess leave status for 35 days, from 13 August 1987 through 17 September 1987. 12. Consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge on 3 September 1987, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and receive a UOTHC discharge. 13. The applicant was discharged on 17 September 1987. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, with a UOTHC characterization of service. However, his 14. Army Regulation 635-200 is the governing Army regulation for administrative separations. 15. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration to the complete evidentiary record, including the applicant’s statement and did not find convincing evidence of error, injustice, or inequity. Although the applicant claimed that his command “ordered him to divorce his wife,” the Board did not find evidence to support this assertion. Therefore, the Board agreed that the applicant’s discharge characterization is appropriate for 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: In addition to the administrative notes annotated by the Analyst of Record (below the signature), the Board determined 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 otherwise 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 17 September 1987, is missing important entries that affect his eligibility for post-service benefits. As a result the DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), issued on 7 September 1990, should be voided and a new DD Form 215 should be issued that reads as follows: a. Amend item 12a (Record of Service – Date Entered [Active Duty] AD This Period) to show the entry "76 03 17," meaning he entered active duty this period on 17 March 1976. b. Amend item 12c (Record of Service – Net Active Service This Period) to show the entry "11 06 01," meaning he was credited with 11 years, 6 months, and 1 day of net active service during the period covered by the DD Form 214. c. Amend item 12d (Record of Service – Total Prior Active Service) to show the entry "01 09 16," meaning he was credited with 1 year, 9 months, and 16 days of prior active service. d. Amend item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) to show he was awarded or authorized the: * Army Commendation Medal (1st Award) * Army Good Conduct Medal (4th Award) * National Defense Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon with Numeral 3 * Driver and Mechanics Badge e. Amend item 18 (Remarks) of the DD Form 214 by adding the following entries: * IMMEDIATE REENLISTMENTS THIS PERIOD: 760317 – 820104; 820105 – 841024 * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 760317 UNTIL 841024 REFERENCES: 1. Title 10, U.S. Code, 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 635-200, in effect at the time, set 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. c. Chapter 10 of that regulation provides, in pertinent part, 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 UOTHC discharge is normally considered appropriate. 3. 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) AR20180016072 5 1