ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20190002165 APPLICANT REQUESTS: In effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his characterization of service is honorable in lieu of under other than honorable conditions (UOTHC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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, in effect, prior to entering the Army his recruiter informed him that he could be a recruiter aide after basic and advanced individual training. When he went home on approved leave, he spoke to the recruiter and he was told the paperwork was not completed. But, if he could "stick" around he would be contacted when it was in order. He waited around and it resulted in him being absent without leave (AWOL). When he was brought back [to the military], he was given a couple of options of which he chose the UOTHC discharge. This choice was made after he was coaxed into saying that he hated black people and couldn't serve with them. 3. The applicant enlisted in the Regular Army on 25 June 1980 for 4 years, in military occupational specialty (MOS) 11C (Indirect Fire Infantryman), for the Army Cash Bonus Enlistment Option in the amount of $2,500, and for the U.S. Army Combat Arms Unit of Choice. He completed the training requirements and he was awarded MOS 11C. On 28 September 1980, he was assigned to Fort Campbell, KY with the principal duties of his MOS. 4. On 5 November 1980, the applicant left his unit in an absent without leave (AWOL) status. A DA Form 4187 (Personnel Action) confirms he was apprehended by military authorities at Richland Center, WI, on 24 February 1981. Headquarters, U.S. Army Personnel Control Facility (PCF), Fort Knox Orders 42-7 confirms that he was returned to military control at the Special Processing Company, PCF, Fort Knox, KY on 25 February 1981. 5. On 25 February 1981, the applicant declined a medical examination. A Report of Mental Status Evaluation confirms, on 26 February 1981, he was found mentally responsible and he had the mental capacity to understand and participate in proceeding deemed appropriate by his chain of command. 6. On 27 February 1981, charges were preferred against the applicant for the period of AWOL from 5 November through 24 February 1981. 7. On 2 March 1981, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, (UCMJ), the possible effects of a request for discharge, and of the procedures and rights available to him. The specific offense cited on his request for discharge is the above period of AWOL. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court- martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He stated he desired to submit statements in his own behalf. On 2 March 1981, the applicant provided two statements: a. In the first statement he acknowledged that he willingly, and voluntarily declared he was AWOL from 5 November 1980 through 24 February 1981. b. In the second statement, he indicates, he was 18 years of age and he graduated from high school. He did not have a job and he was under pressure by the recruiter [to join the military]. He also wanted to see what the Army was like. He requested a chapter 10 discharge because he could not adapt to the military way of life. When he was AWOL he knew he was wanted by the FBI [Federal Bureau of Investigation]. When he was AWOL he also found a job making lots of money, more money than he could make in the Army. But, the main reason he wanted out of the military was that “he could not adapt to military life” and he had “a prejudice against blacks.” 8. On 2 March 1981, his unit and intermediate commanders recommended approval of the applicant's request for discharge with service characterized as UOTHC. 9. On 18 March 1981, 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 trial by court-martial with an UOTHC discharge. On 17 April 1981, he was discharged accordingly. 10. His DD Form 214 shows he received an administrative discharge for conduct triable by court-martial with service characterized as UOTHC. He completed 6 months and 4 days of total active service with lost time from 5 November 1980 through 24 February 1981 (110 days). 11. On 27 October 1982, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable. The ADRB unanimously voted to deny him a change in the character of service and the narrative reason for discharge. 12. Chapter 10 of AR 635-200 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. Although an honorable or general discharge is authorized, an UOTHC discharge is normally considered appropriate. 13. The applicant contends, prior to entering the Army, his recruiter informed him that he could be a recruiter aide after completion of basic and advanced individual training. When he went home on approved leave, he was told by the recruiter the paperwork was not completed. He stuck around waiting for it and this resulted in him being AWOL. When he was brought back [to the military], he chose to take an UOTHC discharge. He made this choice after he was coaxed into saying he hated black people and couldn't serve with them. 14. 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 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 did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service, no awards and insufficient evidence of mitigating circumstances for the misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the misconduct that resulted in the discharge characterization. The Board agreed that the applicant’s discharge characterization is 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. 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 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, an UOTHC discharge is normally considered appropriate. b. 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. c. Paragraph 3-7b states 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// ABCMR Record of Proceedings (cont) AR20190002165 2 1