ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20190007279 APPLICANT REQUESTS: In effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to a more favorable 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), dated 24 May 2019 * Privacy Authorization Form, dated 30 April 2019 * National Archives, Request Pertaining to Military Records, dated 30 April 2019 * National Personnel Records Center (NPRC) Response Letter, dated 8 May 2019 * Congressional Liaison, Letter dated 24 May 2019 * Copy of his Military Service Record * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 16 May 1983 * Two third-party character reference letters 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, he had a difficult time adjusting to military life, as shown in his service records. He struggled to balance personal and military life. He did not understand the process and did not have support from his unit or at home. He felt alone and was trying to make everything work. He could not hold on to his marriage and he struggled to care for his young child. He lashed out and admitted his mistake of going absent without leave (AWOL). He feels that if his unit had provided more support, as they do today, he could have had a successful career. He requests an upgrade to at least a general discharge. 3. The applicant enlisted in the Regular Army on 15 July 1980. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: a. On 8 June 1981, for assaulting another Soldier, with a closed fist, and for being drunk and disorderly, on or about 17 April 1981. b. On 13 January 1983, for absenting himself from his unit from on or about 1 December 1982 through on or about 6 December 1982, and from on or about 23 December 1982 through on or about 6 January 1983. 5. Court-martial charges were preferred against the applicant on 26 April 1983. The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 17 January 1983 through on or about 25 April 1983. 6. The applicant consulted with legal counsel on 26 April 1983. 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 (ADRB) or the ABCMR if he wished for a review of his discharge. He realized that the act of consideration by either board did not imply that his discharge would be upgraded. d. He was advised he could submit any statements he desired in his own behalf; he elected to submit the following statements in a Fort Carson (FC) FL 628-1 (Personal Statement in Support of Request for Discharge for the Good of the Service): (1) Why did you commit the offenses currently charge? I was going through some hard times with my marriage, it seemed she didn’t even give a heck. She wasn’t even helping me out at all. So I had to mess up my life, I learn from my mistakes. (2) Why do you want out of the Army? Because I couldn’t even put my feet back on the ground, and face the Army anymore, not after being AWOL, I was doing so good. 7. The applicant’s commander recommended approval of his request for discharge on 27 April 1983, under the provision of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial. As the basis for his recommendation, his commander cited his 98 days of AWOL and his two previous Article 15s. 8. The Staff Judge Advocate, reviewed the applicant's discharge request on 2 May 1983 and found it legally sufficient. 9. The separation authority approved the applicant's request for discharge on 3 May 1983, 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. 10. The applicant was discharged on 16 May 1983, 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. 11. 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. 12. The applicant provides two character reference letters, in which the authors note the applicant was rebellious to authority because he came from a dysfunctional family. They further note he is a changed man, active in his community; he made bad choices because of his upbringing but he is a loving Christian. 13. 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 considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and his accompanying statement and whether to apply clemency. The Board majority found insufficient evidence of in-service mitigating factors to overcome his multiple absences and considered the letters of reference the applicant provided in support of a clemency determination. One member found sufficient evidence to grant relief. Based on a preponderance of evidence, the Board majority determined there was insufficient justification for clemency and that the character of service the applicant received at discharge was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board majority found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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): N/A 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) AR20190007279 5 1