ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 September 2019 DOCKET NUMBER: AR20190004120 APPLICANT REQUESTS: The applicant request an upgrade of his characterization of service from under other than honorable conditions to honorable or general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Continuation Statement * Letter of Appreciation (x4) * Letter of Commendation (x6) * Army Commendation Medal 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 he completed more than 13 years of military service with pride and honor. He has no ill feelings about the Army, due to his misconduct. He was told that he could get his discharge upgraded. Before he went to Fort Clayton, Panama, he was an instructor at Fort Sill, OK, teaching radio operations and repair after finishing training in the noncommissioned officer education system. He is also a Vietnam veteran and he hopes the Board will permit an upgrade of his discharge. 3. The available evidence shows the applicant had honorable Regular Army (RA) service during the following periods and he was issued DD Forms 214 (Report of Separation from Active Duty) for these periods of service. * 26 August 1971 - 12 July 1972 * 13 July 1972 - 29 June 1975 * 30 June 1975 - 31 May 1976 * 01 June 1976 - 30 July 1979 4. During the above periods of service he served in Vietnam from 10 April 1972 to 28 March 1973 and in Germany from 20 October 1976 to 20 September 1979. 5. On 31 July 1979, he reenlisted in the RA and served honorably until 29 June 1982. He was not issued a DD Form 214 for this period of service. 6. On 30 June 1982, he reenlisted and he held military occupational specialty 31V (Tactical Communications Systems Operator/Mechanic). He was assigned to Panama from 12 January 1983 to 31 January 1984. 7. On 21 December 1983, court-martial charges were preferred against the applicant for: * intent to deceive by signing official records falsely stating that he had two dependents [that were not legally his] * dishonorably failing to pay Fort Sill, OK, National Bank a debt in the amount of $440.40 [in the terms prescribed] * wrongful and bigamously marrying Specialist SRBS, on 17 December 1982, when he was already married to Specialist BAVS * wrongfully and unlawfully obtaining services from the U.S. Government of a value of $722.75 for government transportation and $1,971.45 for military housing 8. On 5 January 1984, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the possible effects of a request for discharge, and of the procedures and rights available to him. The specific offenses cited on his request for discharge are those listed above. 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 635-200 (Personnel Separations – Enlisted Personnel). He elected to submit an additional request in his own behalf. On 19 January 1984, the applicant provided a statement/requesting: a. A general discharge under honorable conditions. He stated he had served honorably as a Soldier since 26 August 1971, a period of approximately 12 years. During that time he compiled an outstanding service record, completed numerous schools, and maintained a professional posture which earned him the reputation of an outstanding noncommissioned officer. b. Additionally, he stated that he earned four Honorable Discharges, three Army Commendation Medals, four Good Conduct Medals, and three Overseas Service Ribbons, to include service in the Republic of Vietnam. He also accumulated many Letters of Commendation and Certificates of Achievement from every level of command to include two Major Generals. c. In addition to outstanding duty performance, as reflected by high skill qualification test results and Enlisted Evaluation Reports, he has continually taken advantage of Army schooling. His request was endorsed by his intermediate and battalion commanders. d. He completed 12 years of service that spoke for itself and indicated that he served well and honorably. For that reason, he was requesting that his service record and his company and battalion commander’s recommendations be considered in making a determination concerning his characterization of service. 9. His unit and intermediate commanders recommended approval of his request with a general discharge, under honorable conditions. 10. On 23 January 1984, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, with a discharge under other than honorable conditions, and reduction to the lowest enlisted grade. On 1 February 1984, he was discharged accordingly. 11. His DD Form 214 shows he completed 4 years, 6 months, and 1 day of net active service this period and 7 years, 11 months, and 5 days of prior active service. His awards are listed as the National Defense Medal, Army Service Ribbon, Overseas Service Ribbon (2nd Award), Vietnam Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Commendation Medal with Oak Leaf Cluster, Good Conduct Medal (4th Award), Marksman Marksmanship Qualification Badge with M-16 Rifle Bar, and Vietnam Campaign Medal. 12. The applicant provides four Letters of Appreciation, five Letters of Commendation, and the Army Commendation Medal Certificate showing outstanding performance, invaluable service, high standards of conduct and dedication, he demonstrated tireless efforts, technical competence, enthusiasm, unit cohesiveness, and meritorious service. 13. The applicant contends he completed more than 13 years of military service with pride and honor. He is also a Vietnam veteran and he hopes the Board will upgrade his discharge to fully honorable. The available evidence shows the applicant was charged with intent to deceive by signing official records falsely stating that he had two dependents; dishonorably failing to pay Fort Sill, OK, National Bank a debt in the amount of $440.40; wrongfully and bigamously marrying Specialist SRBS when he was already married to Specialist BAVS; and wrongfully and unlawfully obtaining services from the U.S. Government of a value of $722.75 for government transportation and $1,971.45 for military housing. a. Chapter 10, 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, a discharge under other than honorable conditions is normally considered appropriate. b. During the period of service under review he completed honorable RA service from 31 July 1979 to 29 June 1982. He completed 1 year 10 months, and 28 days of his current enlistment obligation. 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 and in addition to the administrative notes below the signature, the Board applied Office of the Secretary of Defense standards for consideration of discharge upgrade requests to the complete evidentiary record. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, his chain of command recommendations and the decision by the separation authority. The Board found the statement and evidence of honorable achievements in the form of seven personal meritorious awards and at least seven years of honorable service prior to the misconduct to be compelling. The Board found the punishment harsh and agreed that the applicant’s case warrants clemency in that the applicant’s previous honorable service and personal meritorious awards mitigated the misconduct that resulted in the discharge characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the administrative notes annotated by the Analyst of Record (below the signature), The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period ending 84-02-01 showing his characterization of service as General Under Honorable Conditions. X CHAIRPERSON 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): 1. Army Regulation 635-5 (Personnel Separations – Separation Documents) states for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except “honorable,” enter “CONTINEOUS HONORABLE ACTIVE SERVICE FROM" and specify the appropriate dates. 2. A review of the applicant’s record shows his DD Form 214 for the period ending 1 February 1984 is missing an important entry that may affect his eligibility for post- service benefits. As a result, amend the DD Form 214 by adding the following entry “CONTINEOUS HONORABLE ACTIVE SERVICE FROM 19790731 - 19820629.” 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 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, a discharge under other than honorable conditions 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//