ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20180016958 APPLICANT REQUESTS: In effect, an upgrade of his under other than honorable conditions discharge characterization of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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. The applicant states he is seeking further information or status through the Veterans Administration. 3. The applicant enlisted in the Regular Army on 17 November 1981 for 3 years and he held military occupational specialty 11B (Infantryman). 4. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: a. 15 December 1981, for willfully disobeying a lawful order from a noncommissioned officer to rejoin the formation and perform the exercises. His punishment consisted of a forfeiture of pay (suspended for 30 days) and extra duty. b. 1 February 1982, for disobeying a lawful order given by a commissioned officer to guard the 3rd platoons equipment. His punishment consisted of a forfeiture of pay (suspended for 14 days) and extra duty. 5. On 15 June 1983, he was assigned to Germany and he went into an absent without leave (AWOL) status from 13 September 1983 to 7 May 1985. An AWOL-Deserter Verification Sheet shows he was dropped from Army rolls on 14 October 1983. He surrendered to military authorities and was returned to the U.S. Army Personnel Control Facility (PCF), Fort Dix, NJ, on 7 May 1985. 6. A PCF Interview Sheet shows, on 8 May 1985, after being advised of his rights, the applicant was asked why he went AWOL and he stated he went AWOL because of family problems. They had three children and his wife was having problems taking care of them. He stated that he tried to get reassigned and he was told nothing could be done. This form also shows the applicant was AWOL from an overseas unit over 1 year. He took 18 days of leave, upon expiration of his leave, he requested an extension, which was not approved, and he failed to return to Germany. 7. On 8 May 1985, he declined a separation medical examination. 8. A charge sheet shows, on 10 May 1985, court-martial charges were preferred against the applicant for being AWOL from 13 September 1983 to 7 May 1985. 9. On 10 May 1985, the applicant consulted with legal counsel, who advised him of the basis for the contemplated trial by court-martial for an offense punishable under the UCMJ which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions, if his request for discharge in lieu of trial by court-martial was approved, and of the procedures and rights available to him. a. Following consultation with legal counsel, he requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service in lieu of trial by court-martial. In his request for discharge, he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits administered by the Veterans Administration. He acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He also acknowledged that he had no desire to perform further military service and he elected not to submit a statement on his own behalf. 10. The applicant requested and was placed on excess leave from 10 May to 24 June 1985 pending disposition of his chapter 10 request. 11. His immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge. The immediate commander stated the applicant was pending a trial for an offense punishable with a bad conduct or a dishonorable discharge. The administrative burdens involved in the court-martial and possible confinement were not considered warranted in view of the nature of the offense. 12. On 5 June 1985, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, AR 635-200, for the good of the service-in lieu of court-martial, directed the issuance of an under other than honorable conditions discharge, and reduction to the lowest enlisted grade. 13. On 24 June 1985, the applicant was discharged accordingly. His DD Form 214 shows he completed 1 year, 11 months, and 14 days of creditable active service during the period under review, lost time from 13 September 1983 to 6 May 1985, and excess leave from 10 May to 24 June 1985. His awards consists of the Sharpshooter Marksmanship Qualification Badge Rifle (M-16), Expert Marksmanship Qualification Hand Grenade Badge, and Army Service Ribbon. 14. He was discharged under the provisions of chapter 10, AR 635-200, for the good of the service-in lieu of court-martial, with an under other than honorable conditions discharge, as result of leaving his unit in Germany in an AWOL status from 13 September 1983 to 6 May 1985. He completed almost two thirds of his military service obligation. 15. Chapter 10 of Army Regulation 635-200, in effect at the time (and the current version) 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. 16. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of 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: 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 for correction of the records of the individual concerned. 6/20/2019 X CHAIRPERSON 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the regulation 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 under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a of the regulation currently in effect 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. c. Paragraph 3-7b of the regulation currently in effect 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. 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 based on 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. //NOTHING FOLLOWS//