ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20190007987 APPLICANT REQUESTS: in effect, reconsideration of his earlier request to upgrade his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Army Discharge Review Board) * Two letters of support FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050015358 on 25 May 2006. 2. The applicant states, while he was on active duty, his father passed away. He made a bad decision and went absent without leave (AWOL); he did this to care for his mother because he was the only child. He maintains he was a good Soldier during his brief Army career. 3. The applicant provides two letters of support, one from a friend and the other from his former employer; both letters affirm the applicant is a hard worker, and valued friend and employee. They indicated the applicant displayed such traits as integrity, honesty, and courtesy toward others. 4. The applicant's service records show: a. He enlisted into the Regular Army on 21 May 1986 for a 4-year term; he was 32 years of age. On 14 August 1986, at the completion of basic combat training, the applicant's chain of command recognized him as an outstanding graduate of BT/OSUT (Basic Training/One-Station-Unit-Training) by promoting him to private (PV2)/E-2, effective 14 August 1986. b. On 13 September 1986, the applicant's father died. On or about 25 September 1986, the applicant attended advanced individual training at Fort Lee, VA. Following AIT, orders assigned the applicant to Germany; he arrived on or about 10 January 1987. Effective 2 April 1987, his unit reported the applicant as AWOL and dropped him from Army rolls on 1 May 1987. c. On 29 January 1988, the applicant responded to a letter written to him by an Army sergeant major (SGM); the applicant wrote: (1) He wanted to resolve his status as a deserter; he stated, while he was in training, his father died, but he did not receive the news until December 1986. He returned home during Christmas leave to find his mother was completely devastated and his father's building construction business was in complete disarray. He considered staying home at that point due to being the only child, but his allegiance to the Army prevailed; he continued on to his reassignment to Germany. (2) While in Germany, he was hearing that things were getting worse at home; his mother's health was deteriorating, as was the state of his father's business. He spoke to his superiors, but was told he needed certain documentation to support a (hardship) discharge; details about the necessary documents were vague. Additionally, the applicant knew there was no one at home who could be relied upon to provide the required documentation. As a result, he made an error; he went AWOL and flew back home. (3) The applicant contended his service records would show he was a good Soldier and that he was in communication with both a civilian employee at Fort Harrison, IN, and the military attaché near his home. The applicant promised to cooperate fully with military authorities. d. On 11 March 1988, the applicant surrendered to military authority; effective 14 March 1988, he was reassigned to the U.S. Army Personnel Control Facility (PCF) at Fort Knox, KY. e. On 18 March 1988, the applicant's PCF executive officer (XO) prepared a memorandum for record (MFR), in which he described his interview of the applicant. The XO essentially restated what the events described by applicant in his January 1988 letter to the SGM. The XO also contacted the applicant's leadership in Germany; a lieutenant indicated the applicant was not a problem Soldier and had only been in the unit for 3 or 4 months. The XO concluded the applicant had left in an AWOL status because he was needed at home; once he got a handle on his family problems, the applicant returned to military control. The XO recommended the applicant receive a general discharge under honorable conditions. f. On 24 March 1988, the applicant's PCF commander preferred court-martial charges against him for AWOL from 2 April 1987 until 11 March 1988 (344 days). On that same date, the applicant signed an Admission of AWOL for Administrative Purposes memorandum; the applicant affirmed his counsel had advised him the government did not have immediate access to his service record, but he nonetheless waived all defenses that would have been available to him, if his counsel had had his service record. The applicant also voluntarily declared he had been AWOL from 2 April 1987 until 11 March 1988. g. On 25 March 1988, after consulting with counsel, the applicant requested discharge under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). (1) In his request, he affirmed no one subjected him to coercion and counsel had advised him of the implications of his request. Further, the applicant acknowledged he was guilty of the UCMJ offenses charged. (2) He elected to submit a statement in his own behalf, in which he described learning of his father's death, and going home to find his mother devastated and his father's business deteriorating. He wrote of how he had sought a hardship discharge when he arrived at his duty station in Germany. He further acknowledged he had done wrong by going AWOL, but asked the separation authority to note, up to the point he went AWOL, he had been a good Soldier. h. On 31 March 1988, the applicant's PCF commander recommended approval of the applicant's request; he additionally concurred with his XO's MFR, stating he felt the applicant deserved a general discharge under honorable conditions. The battalion commander also recommended approval, but indorsed an under other than honorable conditions character of service. i. On 7 April 1988, the separation authority approved the applicant's request and directed his under other than honorable conditions discharge; in addition, he ordered the applicant's reduction from PV2 to private/E-1. On 23 May 1988, the applicant was discharged accordingly; his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year and 24 days of his 4-year enlistment contract, with lost time from 2 April 1987 through 10 March 1988. He had served 2 months and 3 days of his tour in Germany, and was awarded or authorized the Army Service Ribbon and two marksmanship qualification badges. j. In an undated letter, the Army Review Boards Agency (ARBA) advised the applicant his petition for a discharge review by the Army Discharge Review Board was submitted beyond the statutory period permitted for appeals; ARBA provided him an ABCMR application. k. On 5 August 2005, the applicant applied to the ABCMR, requesting an upgraded character of service. (1) He contended, while he was in AIT, his father died and his mother was suffering from Alzheimer's disease. At the time of his submission, the applicant stated he was an old man who wanted to have a good military service record. The applicant submitted his father's death certificate as evidence. (2) On 25 May 2006, the ABCMR determined the applicant had filed his relief request outside the 3-year statute of limitations set for ABCMR; in addition, the applicant failed to provide either a compelling explanation or sufficient evidence to show why it would be in the interest of justice to excuse his late submission. The Board denied his request. 5. The applicant acknowledges he made a bad decision by going AWOL, but he did so to take care of his mother; he was an only child. He contends, during his short career, he was a good Soldier. The evidence of record shows he earned an accelerated promotion, his chain of command indicated he was not a problem Soldier, and the applicant's immediate chain of command at the PCF recommended a general discharge under honorable conditions. a. Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. b. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published 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 nature of his misconduct and reason for AWOL, his surrender to military authorities, his letter written at the time, the conclusion and recommendation of the PCF XO and Commander, the reason for his separation and whether to apply clemency. The Board reviewed the applicant provided letters in support of a clemency determination. Based on a preponderance of evidence, the Board determined there were mitigating circumstances associated with the applicant’s misconduct and that the character of service he received at separation was too harsh; clemency was warranted. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 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 amending his DD Form 214 for the period of service ending 23 May 1988 to reflect in item 24 (Character of Service) – “General, under honorable conditions” vice “Under other than honorable conditions”. 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 upgrade of his discharge to “Honorable”. 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): Not Applicable REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge) stated 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. c. Chapter 10 provided that a member who had committed 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 at any time after the charges had been preferred. A discharge under other than honorable conditions was normally considered appropriate. 2. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 8-11 (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 3. The Maximum Punishment Chart in the Manual for Courts-Martial, in effect at the time, showed the punishment for violation of Article 86 (AWOL for 30 or more days) included a bad conduct discharge. 4. 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. 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. 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. 5. AR 600-8-22 (Military Awards) states the Overseas Service Ribbon may be awarded to all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status who successfully complete an overseas tour (i.e. remained overseas until scheduled rotation back to the continental United States). ABCMR Record of Proceedings (cont) AR20190007987 7 1