ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20180016701 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. 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 (Report of Separation from Active Duty), for the period ending 26 June 1979 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 2 December 1985 * self-authored statement dated 6 August 2018 * letter of support, dated 6 August 2018 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: a. While he was home, on leave from Korea, his father had a stroke. He was the only child around to care for him. He did not request a leave extension because he believed that it would not be granted. Seeing his father in such a state disturbed him greatly. Thus, he did not return from leave or ask for an extension. He was reported absent without leave (AWOL). When his father's condition improved, he turned myself in. He was young, upset with his father's condition, and not thinking clearly. He was short and did not have long on his enlistment. He was not trying to escape his duty, he was AWOL for the love of his father. When given the option to take an under less than honorable conditions discharge for the good of the service, he took it so that he could get back to his father. b. When he was 17 years old, his mother passed away suddenly and unexpectedly from a ruptured gall bladder. This led to depression, troubles with eating and sleeping, failing in school, and having to go live with his sister for concerns he might hurt himself. The move only increased his adjustment issues and he sank deeper into depression and isolation. He moved with another sister; she convinced him to join the military because she thought it would make him into a man and help him cope with his problems. He served 3 years and reenlisted for another 3 years but never dealt with his depression and darkness. He never told anyone how hopeless, helpless, worthless, and alone he felt. c. When he came home from Korea for a visit his father suffered a massive stroke that caused flashbacks of losing his mom. He just started to relive his life at 17 years of age and he couldn't face the prospect of losing his dad. He choose to stay by his father’s side and nurse him back to health and never leave him alone again. His choice to go AWOL for the love of father didn’t seem like much of a choice back then. 3. The applicant enlisted in the Regular Army on 16 July 1976. He was discharged for immediate reenlistment on 26 June 1979. He was issued a DD Form 214 for this period of service that shows his service was honorable. 4. The applicant accepted nonjudicial punishment (NJP) on 20 April 1981, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for taking an unauthorized overnight pass while assigned to Korea, on or about 6 April 1981. 5. The applicant’s service records contain: a. A DD Form 458 (Charge Sheet), dated 22 March 1982, which show he was charged with being AWOL from on or about 2 November 1981 until a date to be determined [indicating he had not returned to military control as of the date the charge sheet was prepared]. b. Orders Number 302-28, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK on 29 October 1985, which assigned the applicant to the Personnel Control Facility (PCF), Fort Sill, OK, effective 24 October 1985. These orders indicate he was returned to military control on 18 October 1985. 6. Special court-martial charges were preferred against the applicant on 24 October 1985, for violations of the UCMJ. Specifically, he was charged with being AWOL from on or about 2 November 1981 through on or about 18 October 1985. 7. The applicant consulted with legal counsel on 25 October 1985. 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 a bad conduct 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 further advised that there is no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board for Correction of Military Records if he wished for a review of his discharge. He realized that the act of consideration by either board does not imply that his discharge would be upgraded. d. He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements. 8. The applicant’s commander recommended approval of his discharge request on 25 October and 5 November 1985, in lieu of trial by court-martial, and recommended he receive a UOTHC discharge. His requests include factual data showing the applicant was AWOL for 1446 days until he was apprehended by civil authorities. 9. The separation authority approved the applicant's request for discharge on 13 November 1985, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a UOTHC Discharge Certificate. 10. The applicant was discharged on 2 December 1985, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. The DD Form 214 he was issued shows his service was characterized as UOTHC, and further shows in: * Item 18 (Remarks), the entry "EXCESS LEAVE (CREDITABLE FOR ALL PURPOSES EXCEPT PAY AND ALLOWANCES) --- 38 DAYS: 851025- 851202/SERVICE MEMBER SEPARATED ON TEMPORARY RECORDS AND SOLDIERS AFFIDAVIT/DD FORM 215 WILL BE ISSUED TO PROVIDE MISSING INFORMATION" * Item 28 (Narrative Reason for Separation), the entry "FOR THE GOOD OF THE SERVICE-IN LIEU OF COURT-MARTIAL" * Item 29 (Dates of Lost Time During this Period), "SEE ITEM 18" 11. 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. 12. The applicants provides a third-party letter of support from his sister, acknowledging that their mother passed away when the applicant was 17 years old, and that their father had had a light heart attack in 1981 while the applicant was home on leave. She told the applicant she would look after their father and to rest assured that he would be taken care of. She reiterates the applicant’s problems with dealing with death. 13. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, two Board members determined there is sufficient evidence to grant relief. The majority agreed that the applicant had served almost five years of honorable service before going AWOL. Applicant went AWOL after mother died and father had a heart attack. The majority found that the applicant’s parental situation mitigated the misconduct and that the liberal consideration of clemency should apply. The dissenting Board member voted to deny relief stating there was insufficient evidence that the mitigating circumstances warranted relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing the following amendments: * Characterization: "Honorable" * Separation Authority: "Army Regulation 635-200, paragraph 5-3" * Separation Code: "JFF" * Reentry (RE) Code: "3" * Narrative Reason for Separation: "Secretarial Authority 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): N/A 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018, 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 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) AR20180016701 2 1