ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20190000437 APPLICANT REQUESTS: The applicant requests upgrade of his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge and personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement 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 submitted a DD Form 149 and a self-authored statement. He stated: a. He believes his discharge to be unjust. He married to bring the love of his life overseas with him in Italy. It was unbelievable to him when he was told by his first sergeant (1SG) that she wanted to divorce him because she felt he left her behind in Fort Lee, VA for three months. He repeatedly requested leave to save his marriage and was denied. This went against everything in his life as he was taken away from his family as a child and became a ward of the state of Pennsylvania, then placed with a foster family, and finally adopted at 13 years old. He told himself that he would never do that to his family, he would be there through all times good or bad, but was being denied the right by his 1SG. He finally was given the right to take leave two months later but it was too late because his wife had filed for divorce, which destroyed him. He was a good Soldier, at the top in his class. b. He was at the top of his class at Rigger advanced individual training (AIT). He enjoyed the military. He needed the structure it had given him. They were taught the man in the foxhole had your back. He believed this through and through. Then to be told by his 1SG that the government owned him and he was just a number, ripped him apart. He felt betrayed again. His 1SG told him do not worry about it, the government would take care of him and provide three meals a day and a roof over his head. That was not why he joined the service. He joined to be a lifer but was horribly upset when he lost his wife. He wondered if he could pack parachute rig loads to be dropped, get up out of bed for someone who tore his life apart. He started drinking, writing bad checks, received an Article 15, under the Uniform Code of Military Justice (UCMJ), which until this day he is not proud of. c. He jumped out of 118 planes and helicopters and loved every minute of it. When all this first started, he thought his 1SG had it out for him. He was hit by a car on a physical training (PT) run through the town and the 1SG did not care. The 1SG just told him to get up and keep running. When he returned to the base, he saw a doctor and was placed in a cast to stay off his leg. The 1SG called him a “P” (expletive) and other some other things. This made him drink worse so he was placed on Antabuse, which make him sick when he drank. He really did not care. He just kept drinking and getting into trouble until he was finally given leave. His 1SG told him to sign into any base and do not come back because if he did the 1SG was going to make his life hell. The applicant came back to the U.S., tracked his ex-wife down, and explained everything to her. It was too late, she had already moved on. He was a young man who was mad at the world, which he knows now was wrong. A man is only as good as his word, without that, he is nothing. d. It has been 30 years and he feels the need to make this right. He believes he was wronged by his 1SG, which made him leave the service; a service which he enjoyed until he met the 1SG. 3. On 29 April 1987, at the age of 19 years old, he enlisted in the Regular Army for a term of 3 years. He extended this enlistment for a term of 7 months for a Foreign Service tour, with an expiration term of service of 28 November 1990. On 12 November 1987, he arrived at his permanent duty station in Italy. 4. On 10 May 1988, 181 days after his arrival, he went absent without leave (AWOL). On 9 June 1988, he was dropped from the unit rolls (DFR). On 27 August 1988, he was apprehended by civilian authorities and returned to military control; AWOL for a total of 109 days. 5. On 6 September 1988, a mental status report revealed that the applicant was psychiatrically cleared for administrative actions as seen appropriate by the command. It stated the Soldier was not currently suicidal, homicidal, or blatantly psychotic. 6. On 7 September 1988, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 10 May 1988 and remained absent until 27 August 1988. 7. The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10. The applicant elected not to submit a statement on his own behalf. 8. The applicant's chain of command recommended approval of his request and on 16 September 1988, the appropriate separation authority approved the applicant's request directing the applicant be reduced to rank/grade of private one(PV1)/E-1 and he be issued a discharge under other than honorable conditions. 9. On 10 November 1988, he was discharged accordingly. His service was characterized as UOTHC. He completed 1 year, 2 months, and 25 days of net active service this period, with 6 months and 1 day of Foreign Service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * He was awarded or authorized: * Army Service Ribbon * M-16 Marksman Marksmanship Qualification Badge * Hand Grenade Expert Qualification Badge * Parachutist Badge * Dates of Time Lost During This Period: 880510 – 880826 10. The applicant states he feels that he was wronged by his 1SG at the time for not allowing him to take leave to save his marriage and the way the !SG treated him while assigned to his organization. His record shows he enlisted at the age of 19 years old and charges were preferred against him for being AWOL, resulting in 109 days of lost time. He completed 14 months of 43 months contractual obligation. 11. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 12. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. 13. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant partial relief. 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 the statement and evidence of honorable service prior to the misconduct to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s remorse and honorable period prior to the misconduct have mitigated the misconduct resulting in the discharge characterization. 2. 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. 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 changing the applicant’s discharge characterization on his DD Form 214 to “General 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 the 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): 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel, it states: a. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. 4. 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 whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190000437 6 1