IN THE CASE OF: BOARD DATE: 27 January 2020 DOCKET NUMBER: AR20190005977 APPLICANT REQUESTS: * upgrade of his under other than honorable conditions (UOTHC) discharge * change reason for discharge to “Convenience of the Government” * change reenlistment code to RE-1 and corresponding separation code * add his Jungle Expert Badge and 82nd Airborne Certificate of Achievement * correct his name to show as x____ x_____ APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Statement * Military Identification Card * Social Security Card – old name * Social Security Card – new name * Name change decree, dated 4 July 2018 * Two certificates of achievement/training * Fifteen character references/recommendations letters * Twelve Diplomas and Certificates 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 provides a statement providing he appreciates the opportunity to provide details that led to his discharge and bring light to the honorable life he has led since, and to share his future goals to impact the world in positive ways. His discharge has weighed heavy on his heart for three decades. He initially enlisted with the goal of becoming a Ranger, he saw his enlistment as a prudent way to remove himself from a problematic family situation and plan for a future he could excel in. He strove to be a peak performer and his record was spotless; however, there were several situations that led him astray to a different path. a. First, although not the primary reason for his decision to go AWOL, but an issue that weighed heavy on his mind at the time, a subconscious thought process. After he enlisted, his recruiter initially advised him it was no longer possible to list Ranger school on his contract, and he would need to volunteer upon completion of Airborne training. Upon completion of Airborne training, he attended a Ranger recruitment seminar and volunteered; however, he was told due to an error in his contract, he was placed in a cohort unit, and he could be not accepted as a volunteer. He immediately contacted his recruiter and went through several channels in an attempt to resolve the error in his contract to no avail and left with a contractual error and there was nothing he could do to change it. b. Despite the setback he continued to be a high performer in physical training, promotion, attending jungle operations training, continuing his civilian education and maintain a positive and motivated soldier attitude at all times. He feels the characterization of service received was not reflective of his overall service. c. Approximately one year into his enlistment, he received some bad news from home; his sibling was having violent altercations with his parents, getting involved in drugs, had run away from home, and was hospitalized for attempted suicide. The applicant grew up in an extremely dysfunctional family; he joined the Army to escape it, but discovered, in his absence, his sibling was being destroyed and he traveled to New Jersey to help. He found that it was a bigger crisis then he initially thought; he attempted to extend leave, but regardless of who he spoke to, he was told "no" and feels not being permitted to solve what seemed to be a life or death family crisis and remain in good graces with the Army was an injustice. (1) Frantically, he left the Army, just temporarily (he hoped); he found a way to move to the Midwest and provide a distant safe haven as he attempted to secure unofficial custody of his sibling. He believed if he could just remove his sibling from that environment, he could save his life. They were making enormous strides, which were interrupted when he was brought back to the Army for discharge proceedings. Without going into detail, his sibling is alive and well to this day. (2) In retrospect, was it necessary for him to abandon his military career to accomplish this? That is something only God could have a clear perspective on. Maye a loved one would be dead right now, or maybe the applicant overreacted and everything would have been fine. He was only nineteen years old at the time, with little life wisdom to push such big decisions on. He feels the Army not taking his young age and honorable intentions into consideration was also an injustice. d. Prior to going AWOL he was offered a full scholarship to West Point. Two weeks after his departure his commander contact his mother and told her the applicant had the best record in the entire company. He is not bitter nor has he lost positive feelings or dedication to the Army; he often describes his decision to enlist as one of the best decisions he has ever made, as the experience helped launch him into two very successful careers. e. His traumatic familial circumstances ultimately had a strong effect on his career ambitions. He left the service and found a job right away and continued to work his way through college. (1) He completed his Bachelor of Science in Psychology in 1991 at the prestigious University of San Francisco and went on to train in Advanced Therapeutic Modalities. He has become a certified Hypnotherapist, a Traumatic Incident Reduction Facilitator, a Life Stress Reduction Facilitator, an Ability Enhancement Facilitator, an Advanced Biostructure Correction practitioner, a Success coach, and Mediation teacher. He also created a post-traumatic stress disorder (PTSD) support group for veterans and others suffering from trauma, helping them to return to a healthy state. (2) He completed his second Bachelor's degree with honors at Berklee College of Music, and a Master's degree (4.0) in Music Composition at the University of Miami Frost School of Music. He went on to achieve many successes with music psychology and business. He wrote, arranged, recorded and performed the music for 5 full length albums and received radio play across the United States and Canada. (3) He is now a business owner and running a successful business in music education for almost a decade. f. He asks the Board to consider not only the honorable life he has led since his discharge, but also his post-service life that is filled with academic achievement, high humanitarian ideals, exemplary success in leading a life serving others. 3. On 8 August 1985, the applicant enlisted in the Regular Army for three years at the age of 19. a. A review of his records shows the name used throughout his period of service, as well as on his DD Form 214, was x___ x___ x___. b. Section VI (Enlistment Options Accepted) of his DD Form 1966 shows the specific option/program enlisted for is Army Airborne Enlistment Option. 4. On 2 June 1986, he was charged for being absent without authority (AWOL) from on or about 4 March 1986 to on or about 23 May 1986. 5. On 3 June 1986, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 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 provision of Army Regulation 635-200, chapter 10. He signed a request for discharge for the good of the service and indicated he would not submit statements in his own behalf. 6. The applicant’s chain of command recommended approval of his request and the appropriate separation authority approved the applicant’s request on 11 June 1986; he directed the applicant be discharged under other than honorable conditions. 7. On 2 July 1986, he was discharged accordingly; he completed 1 year, 3 months, and 6 days with approximately 80 days of lost time. His DD Form 214 shows he was assigned separation code "KFS" and reenlistment code "3B, 3." His narrative reason for separation is recorded as "For the good of the service – in lieu of trial by court-martial." 8. The applicant provides: a. A copy of his military identification card, a copy of his social security card with his previous name shown as x___x___x___, a social security card with his current name, a name change decree dated 5 July 2018, a Certificate of Achievement, a Jungle Warfare Training Course Certificate, 15 character/recommendation letters as well as 12 diplomas and certificates of training. b. The character letters are dated throughout time to the present from various co- workers, professors, and acquaintances that provide emphasis on him as someone with good character who is a hardworking, ethical person who desires to make the world a better place; a professional leader with the highest standards, helping and inspiring others in the mental health field; and he’s been recommended for different leadership positions within the mental health field. 9. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request 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. Characterization of service as UOTHC requires reduction to the lowest enlisted grade. 10. The applicant requests his DD Form 214 be corrected to show his Certificate of Achievement and Jungle Expert Badge. He provides a copy of the certificate of achievement and a copy of an Operations Training Center Certificate showing he successfully completed Jungle Warfare Training at Fort Sherman, Panama designating him as a Jungle Expert. The certificate is signed by a lieutenant colonel. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. This regulation defines all authorized Army badges. The Jungle Expert Badge is not an authorized badge. The regulation also authorizes the creation of locally-created badges for limited wear, such as the Jungle Expert Badge, but these types of badges are not authorized for entry on a DD Form 214. Certificates of Achievement are not authorized for entry on a DD Form 214. 11. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD 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 of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found sufficient evidence of post-service achievements and letters of reference to support a favorable clemency determination. Based on a preponderance of evidence, the Board determined the applicant's character of service should be upgraded to under honorable conditions (general). 2. The Board found insufficient evidence of mitigating circumstances that would support a recommendation to change the reason for separation, separation code, or reenlistment code in this case. The Board agreed the applicant had committed an offense that warranted trial by court-martial and voluntarily requested discharge in lieu of trial. His rights were fully protected throughout the process, and his voluntary request was approved by the appropriate authority. By a preponderance of the evidence, the Board determined there is no error or injustice in reason for separation, separation code, or reenlistment code recorded on his DD Form 214. 3. The Board agreed that neither his Jungle Expert Badge nor his Certificate of Achievement were authorized to be recorded on his DD Form 214. The Board determined there is no error or injustice in the fact that these items were not recorded on his DD Form 214. 4. The Board reviewed the applicant's records and noted he consistently used the name recorded on his DD Form 214 throughout his service. The Board found insufficient evidence of mitigating circumstances that would support correction of his DD Form 214 to reflect his post-service name change. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :x x :x GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 for the period ending 2 July 1986 to show his service was characterized as under honorable conditions (general) and to show he held the rank/grade of private first class/E-3 with a date of rank of 8 January 1986. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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, 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 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. Army Regulation 635-5-1 (Separation Program Designators), as then in effect, prescribed the specific authorities, reasons for separation, and the separation program designator codes to be used for each reason for separation. The regulation stated "KFS" was the code applicable to discharges for the good of the service in lieu of trial by court-martial. The Separation Program Designator/Reenlistment Code Cross Reference Table in effect at the time provided that reenlistment codes 3B and 3 were to be used with separation program designator "KFS." 4. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, prescribed eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army and the U.S. Army Reserve. Chapter 3 prescribed basic eligibility for prior service applicants for enlistment, which included a list of Armed Forces RE codes. * RE-4 applies to persons separated from their last period of service with a non- waivable disqualification * RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable * RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated 5. Army Regulation 672-5-1 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. 6. Army Regulation 635-5 (Separation Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. It stated that all decorations, service medals, campaign credits, and badges awarded or authorized will be entered on the DD Form 214 7. 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) AR20190005977 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190005977 8 ABCMR Record of Proceedings (cont) AR20190005977 6