ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2019 DOCKET NUMBER: AR20190001963 APPLICANT REQUESTS: The applicant requests upgrade of his under other than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Army Discharge Review Board) * Finance School Graduation Certificate * Airborne School Diploma * Letter of commendation * Junior Reserve Officers' Training Corps (JROTC) Military Training Certificate * Certificate of Training for completion of basic combat training (BCT) * Certificate of Achievement, Honor Soldier FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 it has been over 33 years since his separation; as such, his information could be slightly off with regard to the timeline of events. Nonetheless, he offers the following: a. He started his military involvement as a sophomore in high school, when he joined JROTC; he achieved the rank of Cadet Brigadier General and served his community well. He was the Honor Guard commander, during which he participated in about 200 Veterans' funerals. During high school, his parent allowed him to live alone while they traveled to Europe with the rest of the family. Being by himself during this critical time left him without the proper guidance necessary for a young man like himself; he decided to join the Army after his girlfriend became pregnant, and because he did not have a job. a. b. During the next 12 months, his girlfriend lost the baby and was sexually assaulted; he also incurred several financial issues. His Army service record up to that point had been exceptional; he was recognized with a letter of commendation for the highest rifle marksmanship score and earned a certificate of achievement for being the Honor Soldier in his BCT unit. He later graduated in the upper part of his Finance class and excelled in airborne school; following training he was assigned to the 82nd Airborne Division at Fort Bragg, NC. c. At Fort Bragg, he secured his GED (General Education Diploma) almost immediately, and was encouraged to take college courses. He was interrupted twice, while taking classes, because his platoon sergeant required him to report for work detail from 6 to 10 PM each weeknight; this was due to troops still being deployed to Grenada. His commander was supposed to submit a "letter of necessity" so the applicant would not be charged for missing school. Instead, his commander told him he would talk to his platoon sergeant about letting the applicant to attend class; unfortunately, this did not happen. As a result, he had to withdraw from his classes and the cost of tuition was deducted from his pay; this caused him great deal of financial strain. d. It was also during this period his girlfriend was sexually assaulted. He asked for time off to go home, but his request was denied. He panicked; in addition, he was also dealing with an unfriendly platoon sergeant who was still upset about the conflicts they had had regarding class attendance. The platoon sergeant told him about a Soldier he had helped to get out of the service; he said the Soldier had gone absent without leave (AWOL) for more than 30 days, and then asked for and got a discharge. The applicant was worried about his girlfriend and he was in a desperate financial state. He almost reached the point of being suicidal when his platoon sergeant suggested he go AWOL; he left for home and stayed away for 30 days. e. In retrospect, he wishes he had gotten better advice, but he was a young 20-year-old with an immature personality. He took the advice of his tormentor and left. He returned and requested separation; he was discharged on 7 May 1985. f. Since his discharge, he has literally had nightmares about his failure to complete his service. He went to work for the local police department; in October 1991, he became a full-time firefighter. After this, he started a successful HVAC (Heating, Ventilation, and Air Conditioning) business and, for the past 24 years, he has served his community and provided jobs for Veterans. He remains active in a military association and has been involved in Honor Flights; he has been both a Little League umpire and a member of an international service organization for most of his life. g. In effect, he asks the Board to consider the entirety of his Army service, starting with his term as a JROTC cadet, and now continuing with his involvement as a member of his military association and participant in Honor Flights. He asserts he was a well- trained Soldier who excelled in many areas; he provided good service as a finance specialist and gave 110 percent every day. He made one mistake, that of following bad a. advice; he wishes he had instead aligned himself with his commander, who seemed to have his best interests in mind. h. He has made a wonderful life for his wife of 33 years; they now have children and grandchildren. He has worked hard to give back to his community. In 2006, he earned his Bachelor's degree and continues to take classes just because he loves to learn. He contends his reason for requesting an upgraded discharge is not because he seeks Department of Veterans' Affairs (VA) benefits; rather, having an under honorable conditions character of service will give him back a small piece of his dignity. 3. The applicant provides documents showing his successful completion of initial training, along with a letter of commendation and certificate of achievement. 4. The applicant's service records show: a. He enlisted into the Regular Army on 30 December 1983 for a 4-year term; he held the rank for private first class (PFC)/E-3 and was 18 years old. Following initial training, orders transferred him to Fort Bragg; he arrived on 26 May 1984. b. On 4 January 1985, after failing to returned from an authorized pass, his Fort Bragg unit placed him in an AWOL status. On 31 January 1985, civil authority arrested and confined him on 31 January 1985; on 15 February 1985, he returned to military control at Fort Bragg. c. On 16 February 1985, he again went AWOL from his Fort Bragg unit; on 22 February 1985, his unit dropped him from Army rolls. On 21 March 1985, he surrendered to Fort Bragg military authority; orders transferred him to the Fort Bragg U.S. Army Personnel Control Facility (PCF). d. On 22 February and 22 March 1985, his commander preferred court-martial charges against him for two periods of AWOL: 4 until 31 January 1985 (27 days) and 16 February until 21 March 1985 (28 days). e. On 22 March 1985, after consulting with counsel, the applicant requested discharge under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and counsel had advised him of the implications of his request; he also acknowledged he was guilty of the charges. He elected not to submit a statement in his own behalf. f. On 1 April 1985, his PCF commander recommended approval of the applicant's request, noting the applicant had acknowledged he went AWOL because he was unable to adjust to continued military service. The applicant told his PCF commander he became upset after his company commander withdrew him from civilian education a. classes due to unit mission requirements; he felt harassed by his chain of command and frustrated by the Army. g. On 16 April 1985, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions; he also directed the applicant's reduction to private/E-1. On 7 May 1985, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 1 month, and 22 days of his 4-year term. He was awarded or authorized the Army Service Ribbon, the Parachutist Badge, and two marksmanship qualification badges. h. On 18 November 1985, the applicant petitioned the Army Discharge Review Board (ADRB), requesting a records review to upgrade of his character of service. (1) He argued the following: (a) He had completed 4 years of JROTC, and his recruiter had claimed, within 6 months and while still in training, he would be promoted to specialist four/E-4. He distinguished himself during training by being awarded a letter of commendation and certificate of appreciation, and for being named the Honor Soldier. (b) On his arrival at Fort Bragg, he experienced a lot of prejudice because he was white and from Florida; junior noncommissioned officers assaulted him twice, but his chain of command took no action. Additionally, most of the members in his unit were harassing him because of the 17 year old woman he was dating; he had met her in Fayetteville and was quite fond of her. She sometimes came to the barracks to pick him up, and, on five occasions, his fellow Soldiers embarrassed him in front of her. (c) His commander gave him permission to attend college; then, after he paid his fees, his chain of command ordered him to work overtime. His leadership was supposed to provide a "letter of necessity," so he would not have pay the government back for the cost of his courses; his commander denied his request and the money was recouped from his pay. He felt under extreme stress and pressure; he even considered suicide. The foregoing were the main reasons he decided to go AWOL. (2) On 26 June 1986, after conducting a records review, the ADRB denied his request. The ADRB indicated the applicant provided no evidence to support his claims of harassment and his record did not show his claimed achievements. i. In multiple applications, dated between 7 January and 4 February 1987, the applicant requested to personally appear with counsel before the ADRB. (1) In support of his applications, he essentially expanded on his earlier arguments, with respect to his exemplary performance during initial training and the harassment he experienced at Fort Bragg. (1) (2) On 4 June 1987, the applicant appeared with counsel before the ADRB. After the presentation of testimony and documentary evidence, the ADRB denied his request after finding his discharge was both equitable and proper. 5. The applicant argues, in effect, due to his exceptional service while in JROTC, during initial training, and after his separation, he merits an upgraded character of service. In addition, he highlights his post-service achievements, which essentially demonstrate he has turned his life around and made significant contributions to his community. 6. While on active duty, he was AWOL for over 30 days; per the UCMJ, the maximum punishment for this offense included a punitive discharge. Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the relatively short term of service completed prior to multiple lengthy AWOL offenses, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/28/2019 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7b stated 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. b. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges had been preferred. A discharge under other than honorable conditions was normally considered appropriate. 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 6-11 (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 4. The Maximum Punishment Chart in the Manual for Courts-Martial, in effect at the time, showed the punishment for violation of Article 86 (AWOL for 30 or more days) included a bad conduct discharge; a dishonorable discharge was also available when the Soldier's AWOL was terminated by apprehension. 5. 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. 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, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, 1. mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 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.