ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20190004225 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), with self-authored statement dated 11 February 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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, in effect, that he was under constant pressure from his non- commissioned officer (NCO). His NCO was a member of the KKK; the day he reported, he was told by his NCO to get out of his office. He was then taken to the barracks and later escorted to the mess hall. He arrived at the unit in August 1982 from Fort Lewis. In September 1982, he was called to his barracks room for an inspection with his NCO and two military police (MPs). When he arrived, he was beaten up and his life was threatened. His NCO told him that he was as good as gone if he ever told anyone. In November 1982, he was granted leave and never went back, for the fear of his life. His brother was an MP and he took him back to Fort Bragg. 3. The applicant enlisted in the Regular Army on 8 August 1979. He was discharged for immediate reenlistment on 19 February 1982. 4. The applicant’s service records contain: a. A DA Form 3975 (Military Police Report), showing he surrendered himself to military authorities on 5 April 1984, from an absent without leave (AWOL) status. The form further shows he went AWOL on or about 25 April 1983 through the date he surrendered. b. Orders Number 67-15, issued by Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC on 5 April 1984, which assigned him to the U.S. Army Personnel Control Facility Processing Detachment, Fort Bragg, NC, effective 5 April 1984. These orders indicate he was returned to military control on 5 April 1984. c. A DA Form 4187 (Personnel Action), showing his duty status was changed to present for duty effective 5 April 1984. The form further shows he went AWOL on or about 25 April 1983 and was from dropped from the rolls on 25 May 1983. d. Court-martial charges were preferred against the applicant on 11 April 1984, for violations of the Uniform Code of Military Justice (UCMJ). The DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 25 April 1983 until on or about 5 April 1984. 5. The applicant consulted with legal counsel on 11 April 1984. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a bad conduct discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was further advised that there is no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board for Correction of Military Records if he wished for a review of his discharge. He realized that the act of consideration by either board does not imply that his discharge would be upgraded. d. He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements in his own behalf. 6. The applicant’s commander recommended approval of his discharge request on 17 April 1984, in lieu of trial by court-martial, and recommended he receive a UOTHC discharge. The commander's recommendation included the following statement: [The applicant] stated he departed AWOL due to adjustment problems. [The applicant] stated he felt like he was going insane. He stated he was known as a bad troop and the NCO's were bugging him. He was treated like an alien. He stated it got to be just too much pressure. A further inquiry with his sergeant revealed that [the applicant] had numerous problems at home with his grandmother. He had gone on leave several times to resolve the problems, but developed a bad attitude and required constant supervision. [The applicant] surrendered 5 April 1984 at Fort Bragg, NC, and desires to be discharged. 7. The applicant's intermediate commander recommended approval of his request on 30 April 1984. 8. The separation authority approved the applicant's request for discharge on 13 June 1984, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a UOTHC Discharge Certificate. 9. The applicant was discharged on 3 July 1984, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 he was issued shows his service was characterized as UOTHC, and further shows in: * Item 18 (Remarks), the entry "Immediate reenlistment this period 790808- 820218. Excess leave (creditable for all purposes except pay and allowances)- 82 days: 840413-840703. //NOTI-IING FOLLOWS//" * Item 28 (Narrative Reason for Separation), the entry "FOR THE GOOD OF THE SERVICE-IN LIEU OF COURT-MARTIAL" * Item 29 (Dates of Lost Time During this Period), "830322-830412; 830425- 840404" 10. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination 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 applicant’s statement, his reenlistment, the frequency and nature of his misconduct and whether to apply clemency. The Board determined that there was insufficient evidence in mitigation to overcome his misconduct and the the character of service he received at discharge was not in error or unjust. The Board concurred with the administrative correction in the Note(s) below. 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 with the exception of that shown in the Administrative Note(s) below. 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): A review of the applicant's record shows his DD Form 214, for the period ending 3 July 1984, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to Item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 790808 UNTIL 820218 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 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. Paragraph 3-7a states 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. b. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018, 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20190004225 3 1