ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 7 June 2019 DOCKET NUMBER: AR20190002255 APPLICANT REQUESTS The applicant requests an upgrade of his DD Form 214 (Report of Separation from Active Duty) to show his characterization of service was 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, he believes he deserves an upgraded discharge because he was an asset of the highest quality to his unit. He went on leave to take care of his mother, who had several mental health issues. She ended up in a mental hospital and she was unable to take care of his younger siblings. He did not believe the State of New Jersey was adequately helping his family. He requested an extension of his leave. He was really young and thought he was making the right choice. He is now legally blind. He is also struggle with being homeless and numerous health and mental health symptoms. He is being discriminated against by slum lords, he cannot get into supported housing. He struggle to live in places that have enough support for his overall needs aside from living in a group home. 3. On 17 May 1976, the applicant enlisted in the U.S. Army National Guard (USARNG) for 6 years in Camden, NJ. Special Orders 111, from the State of New Jersey shows the applicant was ordered to active duty for training for a period of 23 weeks or until completion of military occupational specialty (MOS) training. His reporting date to Fort Dix, NJ, for basic training was 18 July 1976 with follow on training at Fort Lee, VA, for training in MOS 76D (Ordnance Supply and Parts Specialist). 4. On 8 September 1976, at Fort Dix, the applicant accepted nonjudicial punishment prior to completion of basic training for being absent without leave (AWOL) from the unit from 6 to 7 September 1976 and for failure to obey an order to double time in the company area on 8 September 1976. 5. He completed basic training and he was assigned to Fort Lee for completion of advanced individual training) (AIT) on 24 September 1976. 6. Orders 111-3 from the State of New Jersey, Department of Defense confirms the applicant was discharged from the USARNG, effective 28 November 1976, with a General Discharge Certificate and he was assigned to the Individual Ready Reserve while in an AWOL status. 7. On 29 June 1977, a Report of Medical Examination confirms the applicant was found qualified for separation. 8. On 12 July 1977, court-martial charges were preferred against the applicant for being AWOL from his unit from 1 November to 28 December 1976 and from 2 February to 28 June 1977. 9. A Personnel Control Facility Interview Sheet shows upon the applicant’s return from being AWOL he stated, in effect, that he was at home on a pass when his mother got sick so he just stayed. After returning to his unit he asked for leave and did not get it and he went AWOL again. He requested a discharge under the provisions of chapter 10. 10. On 8 July 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him. 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 declined to submit statements in his own behalf. 11. The applicant's immediate and intermediate commanders recommended approval of the discharge action with the issuance of an UOTHC discharge. The immediate commander indicated that during the interview, the applicant assured him that he wanted to be discharged. 12. On 10 September 1977, the separation authority approved the applicant’s discharged 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. The discharge authority directed that he be reduced to the lowest enlisted grade. 13. Accordingly, the applicant was discharged on 28 September 1977. His DD Form 214 confirms he completed 7 months and 20 days of active service and he had 202 days of lost time. 14. The applicant entered active duty to complete MOS training, he failed to complete that training and he was discharged because he continuously went AWOL. The available evidence does show he stated that his mother was ill after he returned from a period of AWOL and he went AWOL again after he was denied leave. 15. The applicant voluntarily requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200, in lieu of trial by court-martial. A UOTHC discharge is normally considered appropriate when discharged under this provision of the regulation. 16. The applicant contends that he deserves an upgrade of his discharge because he was an asset of the highest quality to his unit. He went AWOL to take care of his mother and younger siblings, because his mother was having mental health issues and was hospitalized. He requested leave [and he was denied]. He was really young and thought he was making the right choice. He is legally blind, struggling with health issues, and inadequate housing. 17. 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: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the frequency and nature of his misconduct, his statement of reasons for his absences and his current medical situation and whether to apply clemency. The Board found insufficient evidence of mitigation for his multiple absences and determined that the character of service he received at discharge was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. 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 (Personnel Separations – Enlisted Personnel) sets forth the policy for administrative separation of enlisted personnel. a. Chapter 10 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. However, an undesirable discharge was considered appropriate at the time the applicant was discharged. b. Paragraph 3-7a states 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. ABCMR Record of Proceedings (cont) AR20190002255 4 1