IN THE CASE OF: BOARD DATE: 23 April 2020 DOCKET NUMBER: AR20190005282 APPLICANT REQUESTS: an upgrade of character of service from under other than honorable conditions (UOTHC) honorable and a correction for his: * rank to read as Private First Class (PFC) * social security number (SSN (identity)) to read as "XXX-XX-XXXX" (here after referred to as "Y") 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 (copy, Member – 1) * letter, Department of Veterans Affairs (VA), dated 24 December 2018 * letter, VA, dated 30 January 2019 * letter, National Personnel Records Center (NPRC), dated 13 February 2019 * Standard Form 180 (Request Pertaining to Military Records), dated 19 February 2020 * Constituent Service Authorization Form, dated 19 February 2020 * letter, Senator, "B," United States Senate, dated 24 February 2020 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the 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, his discharge and receipt of an UOTHC character of service, on 6 June 1988 was unjust and does not coincide with his records or identity. His separation document, which he provides, does not list his type of discharge. He contends the circumstances surrounding his absence without leave (AWOL) were incorrect, because he stayed in contact with the Army and he was never apprehended. His commander did not sign his DD Form 214 and through the years his request for records has provided the information under his SSN are not his records. a. When he made a request for VA assistance he was informed his name change was corrected, on 5 May 1988, although it was not corrected until 2018 through the United States Social Security Administration (SSA), which is also evidence of his identity issue or privacy act. b. He contends documents of record show his SSN with someone else's name listed and the U.S. Army action has messed up his records, which has caused him a denial of entrance of any kind. He contends he previously submitted an application for correction of his records on 14 December 2018. 3. On 26 November 1986, the applicant enlisted into the Regular Army. He completed one station unit training (OSUT), on 2 April 1987, and was awarded military occupational specialty (MOS) 19E (Tank Crewman). 4. On 5 January 1988, the applicant's duty status changed from ordinary leave to absent without leave (AWOL). His duty status subsequently changed from AWOL to dropped from the rolls (DFR) on 4 February 1988. 5. On 2 May 1988, the applicant's duty status changed from DFR to attached – return to military control. The evidence of record shows civilian authorities apprehended the applicant in Forrest City, AR. 6. On 6 May 1988, court-martial charges were preferred against the applicant; he was charged with AWOL from on or about 5 January 1988 until on or about 2 May 1988. The personal data listed his name as "M," his SSN as "Y," and his rank as PFC (private first class/E-3). a. His commander recommended trial by Special Court – Martial. b. He voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. In his request for discharge, the applicant acknowledged he made his request of his own free will and without any coercion, he understood the preferred charge(s), and he was guilty of the charge(s). He indicated that he did not desire further rehabilitation or to perform further military service. He also acknowledged that he consulted with counsel who fully advised him of his rights under the Uniform Code of Military Justice (UCMJ). He acknowledged he understood he may receive an UOTHC discharge and as a result, he would be deprived of many or all Army benefits, including ineligibility of many or all VA benefits and deprived of his rights or benefits as a veteran. He further acknowledged he was advised of his right to submit statements on his own behalf, though he elected not to submit statements with his request and he elected not to receive a physical evaluation prior to separation. 7. Orders 130–30, published by Headquarters, U.S. Army Field Artillery Center and Fort Sill, on 4 May 1988 show the applicant was DFR of Charlie Company, 2nd Battalion, 41st Infantry Regiment, 2nd Armored Division, Fort Hood, TX and show the place and date of return to military control as San Antonio, TX on 3 May 1988. 8. A DA Form 4187 (Personnel Action), dated 10 May 1988, contains the following information: * Section I (Personal Identification) – his name as "M," his rank as PFC/E – 3, and his SSN as "Y" * Section IV (Remarks) – corrected the spelling of his last name to change the fourth letter of his last name to read "" instead of "" 9. On 19 May 1988, the applicant's commander recommended him for discharge under the provisions of Army Regulation 635 – 200, Chapter 10, and the issuance of an UOTHC discharge. 10. On 20 May 1988, the trial counsel reviewed the applicant's request for discharge for the good of the service and concurred with the commander's recommendation. 11. On 24 May 1988, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an UOTHC discharge and his reduction to the rank of Private (PV1/E-1) in accordance with Army Regulation 600-200, paragraph 6-11. 12. On 6 June 1988, the applicant was discharged under the provisions of Army Regulation 635–200, chapter 10, for the good of the service, in lieu of court-martial. He completed 1 year, 2 months, and 14 days of net active service, which was characterized as UOTHC. His DD Form 214 shows: * item 1 (Name) – "M" (the name he indicates is correct) * item 3 (SSN) – "Y" (the SSN he indicates is correct) * item 4a (Grade, Rate or Rank) – PV1 * item 21 (Signature of Member Being Separated) – not available for signature * item 22 (Type Name, Grade, Title, and Signature of Official Authorized to Sign) – for "S," 1st Lieutenant, Adjutant General (C, Transfer Point) * item 29 (Dates of Time Lost During this Period) – 5 January 1988 through 1 May 1988 13. There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. 14. The applicant provides documents, which shows the following: a. A letter from the VA, Claims Intake Center, dated 24 December 2018, which shows his SSN and the name of "D." The document shows: (1) He submitted documents stating he was on medical leave from the U.S. Army with injuries and was notified he would receive a discharge under medical conditions that he would be upgraded to honorable and would list his name change, which never occurred. His name change was verified for correction and all his VA records were reviewed and did not corroborate his account of events. (2) A DD Form 4187 (Personnel Action) indicated he was on leave from 22 December 1987 and due to return on 4 February 1988 and his duty status was changed from ordinary leave to AWOL, on 5 January 1988. He was then DFR, apprehended by civilian authorities, returned to military control, and requested discharge under the provisions of Army Regulation 635-200, chapter 10. (3) He was sent a notice of adverse action, on 2 August 2019, he responded, on 12 August 2019, for the VA denial of his eligibility or benefits. b. A letter, dated 30 January 2019, from the VA, which shows his name was changed in accordance with his request after verification was made with the SSA. c. A letter, 13 February 2019, from the NPRC which shows his records were unable to be located in order to answer his request. 15. His available record is void of evidence, which shows he was on approved ordinary leave for medical reasons. 16. 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. 17. The applicant provided statements and evidence with his application that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, his request for discharge, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. The Board found insufficient evidence of error in his SSN or rank. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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. REFERENCES: 1. Title 10, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, 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, an under than honorable conditions discharge was normally furnished 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. 3. Army Regulation 600-200 (Enlisted Personnel Management), then in effect, prescribes revision for policy and procedures for career management of Army personnel. Paragraph 6–11 (Approved for discharge from service under other than honorable conditions) states when the separation authority determines that a soldier is to be discharged from the service under other than honorable conditions he or she will be reduced to the lowest enlisted grade. Board action is not required for this reduction. The commander having separation authority will when direction a discharge under other than honorable conditions, or when directed by higher authority, direct the soldier to be reduced to private (PV1). 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR, and provides, in pertinent part, that the ABCMR’s jurisdiction under Title 10, United States Code (USC), extends to any military record of the Department of the Army. This regulation also provides that the ABCMR staff will determine if the ABCMR has jurisdiction to grant the relief requested. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190005282 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1