IN THE CASE OF: BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20190003435 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge * personal Board appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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: a. He was told by the Army recruiter in September 1980 that if he enlisted, being prior service, he would not have to go through basic training. He would go to advanced individual training (AIT) in his prior military occupational specialty. When he arrived at Fort Bliss he was told he had to go through basic training. He requested to see his commanding officer, chaplain, and a doctor. After being told that they could do nothing he finished basic training and then he was advised he would not be going to his old military occupational specialty (MOS). He would be going to AIT for Hawk Missiles. b. He again asked to see his commanding officer, and also went to see another doctor for hearing. The doctor told him his right ear was not like it was when he entered the service. After being lied to so many times, he was told by a sergeant in order to get out of the Army he would have to be absent without leave (AWOL) for 90 days. c. He is going to be 72 years old. His decision to go AWOL was reached only after he had exercised and tried every means within his chain of command. When he had turned himself in at Fort Sill, the commanding officer there asked if he would return to his unit. He stated not that unit, but he would return to a unit to work in his old MOS. The commanding officer refused his request. He does not want any Veterans benefits and would not ask for any. 3. Having had prior service in the Regular Army, U.S. Army National Guard, and the U.S. Army Reserve, the applicant enlisted in Regular Army for a period of 4 years on 3 December 1980. He enlisted in the rank and grade of private first class/E-3. 4. His Service Record shows, in pertinent part: * assignment considerations for MOS 16D (Hawk Missile Crewmember) were lined-through * he was “DISQUALIFIED FOR TNG IN MOS 16D and is FOR TNG IN PMOS 75D (810220).” * he was AWOL from on or about 5 March to 19 May 1981 (approximately 74 days) 5. On 21 May 1981, court-martial charges were preferred against the applicant for being AWOL, from on or about 5 March to 18 May 1981. The charge sheet shows he went AWOL when he was assigned to the training battalion (One Station Unit Training) at Fort Bliss, TX. 6. On 22 May 1981, the applicant voluntarily requested a 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). a. 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 provisions of chapter 10, AR 635-200. b. He did not indicate if he would submit statements in his own behalf. c. The applicant was medically cleared and his chain of command recommended approval of his discharge request with the issuance of an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate. d. The separation authority approved the applicant’s discharge request for the good of the service and directed he be furnished an UOTHC Discharge Certificate. 7. On 29 June 1981, the applicant was discharged accordingly. He completed 4 months and 14 days of net active service this period. He had lost time from 5 March to 17 May 1981. The applicant was not awarded a personal decoration. 8. The record contains no indication of procedural or other errors that would tend to have jeopardized the applicant’s rights. 9. 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 Board or the Director of ABCMR may authorize a personal appearance. 10. Army Regulation 635-200 states that, a member who was charged with 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. In a case in which an UOTHC is authorized by regulation, 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. 11. In reaching its determination, the Board should consider the applicant's petition, service record, and statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration for discharge upgrade requests. The Board discussed his length of service, the nature of his misconduct and length of his absence, his statement regarding his reasons for going AWOL, and whether to apply clemency. The Board found insufficient mitigation for his misconduct and determined that the character of service he received was not in error or unjust. The Board further determined that the evidence was sufficient to render a fair decision and deny the applicant’s request for a personal appearance. 2. After reviewing the application and all supporting documents, the Board determined the 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with 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. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 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. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, 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. 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 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. 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. 4. Army Regulation 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. ABCMR Record of Proceedings (cont) AR20190003435 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190003435 6 ABCMR Record of Proceedings (cont) AR20190003435 5