ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20190007954 APPLICANT REQUESTS: in effect, his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge, and a personal appearance before the Board. 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 2 June 2019, with 3-page personal worksheet * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 22 December 1987 * City of Troy, NY, Certificate of Appreciation, dated 1 March 2018 * New York State Assembly, Exemplary Service Citation, dated 5 March 2018 * Certificate of Commendation, dated 5 March 2018 * Troy, NY, Mayor’s Certificate of Recognition, dated 5 March 2018 * Letter of Recommendation, dated 11 December 2018 * Character Reference Letters, undated and dated 12 December 2018 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 his wife had been sleeping around with fellow Soldiers on base, prior to her joining him in off base housing. She was also taking money out of the bank, not paying the bills, leaving their 5-year-old daughter home alone, and she was on drugs. He didn’t know what else to do at the time. He also wasn’t aware his wife had an outstanding warrant for armed robbery. Due to the love for his wife, even thru her infidelity, he got caught up in trying to fix his family and lost focus of his career. 3. The applicant enlisted in the Regular Army on 11 February 1986. 4. The applicant’s record contains: a. Three DA Forms 4187 (Personnel Action) that show his status was changed from ordinary leave to absent without leave (AWOL) on 11 May 1987; from AWOL to dropped from the rolls (DFR) on 10 June 1987; and from DFR to Present for Duty following his apprehension by civilian authorities in Detroit, MI on 19 October 1987. b. A memorandum showing the applicant did not desire a medical evaluation prior to his separation. c. A memorandum showing the applicant’s "Admission of AWOL for Administrative Purposes," dated 26 October 1987. d. Court-martial charges were preferred against the applicant on 26 October 1987 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 11 May 1987 through on or about 19 October 1987. 5. Orders Number 198-6, issued by Headquarters, U.S. Army Personnel Control Facility (PCF), Fort Knox, KY on 27 October 1987, assigned the applicant to the PCF, Fort Knox, KY effective on 19 October 1987. These orders indicate he was apprehended and returned to military control on the same day. 6. The applicant consulted with legal counsel on 26 October 1987. 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 or the Army 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. He initialed that he did not desire to submit a statement. 7. The applicant’s immediate commander recommended approval of his discharge request on 27 October 1987, in lieu of trial by court-martial, and recommended he receive an UOTHC discharge. His endorsement included the statement: "His conduct has rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge. Based on his previous record, punishment can be expected to have a minimal rehabilitative effect. I believe a discharge at this time to be in the best interest of all concerned." The applicant’s intermediate commander also recommended approval of his request on 28 October 1987 and recommended he receive an UOTHC discharge. 8. The separation authority approved the applicant's request for discharge on 30 October 1987, 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 22 December 1987, 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), include the entry "EXCESS LEAVE OF 57 DAYS FROM 871027-871222" * 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), "850511-871018" 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 applicants provides the following for consideration: * Certificate of Appreciation from the City of Troy, NY, for his military service dated 1 March 2018 * Exemplary Service Citation, from the New York State Assembly, in recognition of his faithful and heroic service in the Army, dated 5 March 2018 * Certificate of Commendation, in recognition of admirable service in the U.S. Army, dated 5 March 2018 * Troy, NY, Mayor’s Certificate of Recognition, in appreciation of distinguished service as a member of the U.S. Armed Forces, dated 5 March 2018 * Letter of Recommendation, showing he has a positive attitude, willingness to learn, professionalism, respected by peers, flexibility, exercise initiative, dedicated and adaptable * Two Character Letters, showing, he is: hardworking, committed to duty, like by colleagues, goes above and beyond, honest, family man, strong man of faith, has leadership qualities, thoughtful, quiet, humble and inspiring, seeks to better his community, a leader in his neighborhood and empowers others in his community 12. 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 reason for his period of AWOL, his record of service, the length of his absence and his apprehension, and whether to apply clemency. The Board considered the letters of reference and certificates documenting post-service accomplishments he provided in support of clemency. Based on the preponderance of evidence, the Board determined there was insufficient evidence to mitigate his misconduct, that clemency was not warranted and the character of service he received at separation was not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, the Board determined a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found 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. 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 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. 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. 4. 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) AR20190007954 5 1