ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		BOARD DATE:  6 June 2019

	DOCKET NUMBER:  AR20190002198


APPLICANT REQUESTS:  upgrade his other than honorable conditions discharge to 
honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for Army Discharge Review Board)
*	Five letters of support

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 he joined the Army in June of 1976; he was very happy 
because being in the Army was one thing he had always wanted to do.  

	a.  He graduated 5th in his basic combat training (BCT) class and his leadership 
promoted him to private (PV2)/E-2.  He always tried to do his best on his PT (physical 
training) test, and everything he did; he was an expert rifleman.  

	b.  He reported to his duty station in Hawaii after leaving Fort Lee, VA; everything 
was going good for him.  He was a very sharp Soldier from his head to his shoes; his 
uniform was starched and pressed, and his boots shined like glass.  He never 
disobeyed orders and was always respectful; he made rank very quickly to specialist 
four (SP4)/E-4.  After this, however, his life took a wrong turn.  He started hanging with 
the wrong guys and began to experiment with drugs; his attitude changed and 
everything went wrong.  He was not reporting for duty like he should, and eventually just 
stopped going all together; he was also losing his family.  

	c.  When he returned to duty, he tried explained his problem to his section sergeant; 
his section sergeant just left his office and did not come back.  The applicant then went 
to ask for help from his first sergeant (1SG).  The 1SG said he should talk to the CO 
(commanding officer); his CO just said he would see what he could do.  In the 
meantime, the CO assigned him to work for the 1SG doing paperwork and anything else 
needing to be done.  He told the 1SG he did not want to be discharged; the 1SG said he 
did not make such decisions.  The applicant never heard back from his CO, he just 
recalls the 1SG got a call and then told him he was being discharged under other than 
honorable conditions.  The applicant could not respond, he felt so hurt by what had 
happened.  

	d.  He was separated on 25 July 1978 and, for over 40 years, has lived in shame; 
however, he was able to get his life back together when he started going to church.  He 
became a professional bus driver and was later promoted to route trainer; he eventually 
retired.  He has also coached young kids in football, baseball, and basketball; he has 
worked hard to help them stay away from drugs.  He also raised three kids and put 
them through college on a bus driver's salary.  He is a church musician, and plays the 
piano for young adults and senior citizens.  He never spoke to anyone except his wife of 
46 years about his military career; he never knew he could ask for an upgrade.  

	e.  In looking back on his Army career, he realizes he made the biggest mistake of 
his life; he also believes they did not give him a fair chance, and never provided the help 
he needed.  He contends he was only guilty of being absent without leave (AWOL); he 
did not disobey orders, and never did anything to anyone.  He asked for, and his God 
granted him forgiveness; he now asks for help once more from the Army so he can 
have a military funeral.  

3.  The applicant provides five letters of support from his spouse, sister-in-law, 
supervisors, and a coworker.  

	a.  His spouse describes their marriage, starting prior to the applicant's entry on 
active duty, through his military career, and their post-service experiences.  She 
enumerates his many good qualities, and, in effect, asks the Board to consider the 
entirety of the applicant's situation, both during and after his Army service. 

	b.  The applicant's supervisors and coworker affirm him as a loyal, honest, and 
considerate person who is a great communicator and has good moral character.  He is 
hardworking, dedicated, and never leaves a job unfinished.  His sister-in-law states she 
has known the applicant since he was a teenager, and attests to his strength of 
character and compassion.  She notes the applicant has achieved significant 
accomplishments in his career as a bus driver. 

4.  The applicant's service record shows:

	a.  The applicant enlisted into the Regular Army on 28 June 1976 for a 3-year term.  
While participating in advanced individual training at Fort Lee, the applicant accepted 
nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) 
for AWOL from 7 until 14 October 1976 (7 days).  

	b.  On completion of initial training, orders assigned him to Hawaii; he arrived on 
21 December 1976.  Effective 1 February 1977, his chain of command promoted him to 
private first class (PFC)/E-3.

	c.  On 13 May 1977, he accepted NJP for failing to be at his appointed place of duty 
at the time prescribed.

	d.  At some point prior to January 1978, his leadership promoted him to SP4.  
Between January and March 1978, he accepted NJP on three occasions:

*	31 January 1978 – AWOL from 30 December 1977 until 18 January 
1978 (19 days); punishment included reduction to PFC
*	24 February 1978 – two specifications of failing to go to his appointed place of 
duty at the time prescribed, and one specification of disrespectful language to 
a staff sergeant; his commander reduced him to PV2
*	31 March 1978 – two specifications of failing to go to his appointed place of 
duty at the time prescribed; punishment included reduction to private 
(PV1)/E-1 

	e.  On 12 May 1978, he departed his Hawaii unit in an AWOL status and remained 
absent until 12 June 1978.  On 20 June 1978, his commander preferred court-martial 
charges against him for AWOL from 12 May until 12 June 1978 (31 days).

	f.  On 30 June 1978, after consulting with counsel, the applicant requested discharge 
for the good of the service, in-lieu of trial by court-martial, under 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 acknowledged he was 
guilty of the charge and submitted a statement in his own behalf:

		(1)  He described being laid off by General Motors and joining the Army.  After 
BCT, he attended "cook" AIT; he had worked as a cook in his unit since December 
1976.  His wife had a curvature of her spine, and this made it hard for her to give birth; 
she lost two babies, and had to be hospitalized for the birth of their son.  

		(2)  He had tried to adapt to the Army, but his concerns for his wife's condition 
caused problems, and made it hard for him to perform his military duties; his failure to 
be at this appointed place of duty, as well as his periods of AWOL, were due to those 
problems.

		(3)  On 12 May 1978, when his AWOL started, his wife was unable to move; he 
took her to the emergency room, where they applied hot packs to alleviate the condition.  
He took her and their son back home, and stayed away from work so he could help 
them.  One day led to another, and soon a month had passed.  He was sorry for being 
AWOL; he did not realize the seriousness of the offense, he just wanted to take care of 
his family.  It was very hard to support a family on PV1 pay, especially in Hawaii; as 
such, he requested discharge for the good of the service. 

	g.  The applicant's spouse also submitted a handwritten letter, in which she spoke of 
her medical condition, and the resulting problems she and the applicant experienced.  
She stated, when her husband was AWOL, he was home helping her because she was 
unable to move.  The applicant had asked for a compassionate reassignment or to be 
discharged while attending cook school; he was told there was nothing that could be 
done.  She also indicated they were having financial problems, based on his pay being 
taken as a result of his periods of AWOL.  Although she worked, her income was only 
enough to pay for food and the applicant's gas money.  With all of their problems 
considered, they were near the breaking point; she requested the command support his 
discharge so they could go home and the applicant could resume his old job.

	h.  The applicant's company and battalion commanders recommended approval of 
the chapter 10.  The company commander stated the applicant had been a substandard 
Soldier since his arrival in the unit; he enumerated the applicant's NJP actions, and said 
the applicant would never be an asset to the Army.  The battalion commander 
concurred, adding further rehabilitative measures would not serve any useful purpose.

	i.  On 14 July 1978, the separation authority approved the applicant's request and 
directed his discharge under other than honorable conditions; on 25 July 1978, he was 
discharged accordingly.  His DD Form 214 (Report of Separation of Active Duty) 
showed he completed 1 year, 11 months, and 1 day of his 3-year enlistment contract, 
with 57 days of lost time over three periods (7 through 13 October 1976; 30 December 
1977 through 17 January 1978; and 12 May through 11 June 1978).  He was awarded 
or authorized an Expert Marksmanship Qualification Badge with Rifle Bar.

5.  The applicant essentially acknowledges his misconduct, and highlights significant 
post-service accomplishments; he offers letters from family and coworkers to support 
his claims.  

	a.  Per the Manual for Courts-Martial that was in effect at the time, the maximum 
punishment for AWOL in excess of 30 days 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.  

	b.  In reaching its determination, the Board should also consider the statements and 
evidence the applicant provided in conjunction with his military service record in 
accordance with the published equity, injustice, or clemency determination guidance.  

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined that there is 
sufficient evidence to grant partial relief.  The Board agreed that the applicant’s case 
warrants clemency in that the Board agreed that the applicant’s post-service honorable 
conduct had partially mitigated the misconduct that resulted in the discharge 
characterization.  Therefore the Board determined there is sufficient evidence to grant 
partial relief to upgrade the applicant’s discharge to general under honorable conditions.  

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 discharge characterization of service 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 upgrading the characterization of his discharge to 
Honorable.

	  
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 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, prescribed policies and procedures for enlisted 
administrative separations.

	a.  Paragraph 1-13a (Honorable Discharge).  An honorable discharge was a 
separation with honor; commanders issued an honorable discharge certificate based on 
the Soldier's proper military behavior and proficient duty performance.  Commanders 
were to give due consideration to the Soldier's age, length of service, and general 
aptitude.  Where there were infractions of discipline, commanders were to assess the 
extent of those infractions as well as the seriousness of the offenses.

	b.  Paragraph 1-13b (General Discharge).  A general discharge was a separation 
from the Army under honorable conditions, where the Soldier's military record was not 
sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 permitted a Soldier to request discharge for the good of the service 
when they had committed an offense or offenses which, under the UCMJ and the 
Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad 
conduct or dishonorable discharge as a punishment.  The Soldier could submit such a 
request at any time after court-martial charges were preferred.  Commanders were to 
ensure the request for discharge was a personal decision, free of coercion, and that the 
Soldier was given a reasonable amount of time to consult with counsel.  Once the 
Soldier made the decision to request discharge, he/she had to put it in writing and 
counsel was required to sign as a witness.  Once approved, an under other than 
honorable conditions character of service was normally furnished, but the discharge 
authority could direct either an honorable or general discharge, if warranted.

3.  The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of 
Maximum Punishments showed Article 86 (AWOL for more than 30 days), UCMJ, 
included a dishonorable discharge.

4.   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, 
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.

//NOTHING FOLLOWS//




ABCMR Record of Proceedings (cont)	 AR20190002198

4

1