ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20190009313 APPLICANT REQUESTS: An upgrade of his characterization of service from under other than honorable conditions to honorable or general, under honorable conditions. 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) 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 states during his military service he was airborne and made approximately 40 or more jumps. He received the Good Conduct Medal and qualified as Expert [with the M-16 Rifle]. When he was stationed at Fort Irwin, CA, a fellow Soldier was killed in June or July 1983, he began using drugs, and went absent without leave (AWOL). Then he reenlisted under a different name to become a military police, but while attending basic training he turned himself in prior to the background check. 3. The applicant had honorable Regular Army (RA) service from 27 June 1978 to 14 January 1982. He accepted nonjudicial punishment (NJP) under the provisions of the Uniform Code of Military Justice (UCMJ), on 14 March 1979, for leaving his unit at Fort Bragg, NC, in an AWOL status from 1 to 13 February 1978. His punishment consisted of reduction to pay grade E-1 (suspended for 60 days) and extra duty. He held military occupational specialty (MOS) 11B (Infantryman). During this period of service he also served in Korea from 23 August 1980 to 18 August 1981. 4. On 15 January 1982, while at Fort Bragg, he immediately reenlisted in the RA for 3 years, a service school (operating room specialist, MOS 91D), and in pay grade E-4. On 16 June 1982, he was assigned to Fort Sam Houston, TX, for training in MOS 91D. 5. He left Fort Sam Houston in an AWOL status from 6 to 21 September 1982 until he was returned to Fort Sam Houston in a duty Soldier status. He accepted NJP, for this period of AWOL. His punishment consisted of reduction to pay grade E-2, a forfeiture of pay (suspended until January 1983), and extra duty. 6. On 19 December 1982, he was assigned to Fort Irwin, with the principal duties of MOS 11B. He left this unit in an AWOL status from 18 August to 5 October 1983, until he was returned to military control at the Special Processing Company, Personnel Control Facility (PCF), Fort Know, KY. On 12 October 1983, court-martial charges were preferred against him for this period of AWOL. 7. On 14 October 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the possible effects of a request for discharge, and of the procedures and rights available to him. The specific offense cited on his request for discharge is his period of AWOL from 18 August to 5 October 1983. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He elected not to submit a statement in his own behalf and he declined a separation physical examination. 8. On 16 October 1983, the applicant’s immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions characterization of service. 9. On 21 November 1983, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, with a discharge under other than honorable conditions, and reduction to the lowest enlisted grade. On 14 December 1983, he was discharged accordingly. 10. His DD Form 214 shows he completed 5 years, 3 months, and 15 days of net active service this period, 62 days of lost time, and no prior active service. His awards are listed as the Expert Marksmanship Qualification Badge Rifle (M-16), Army Service Ribbon, Overseas Service Ribbon, Parachutist Badge, and Noncommissioned Officer Professional Development Ribbon (primary level). 11. Chapter 10, AR 635-200 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 12. Regarding the applicant’s contentions that a fellow Soldier was killed in June or July 1983, at Fort Irwin, and he began using drugs, and went AWOL. After this occurred, he reenlisted under a different name to become a military police, but while in basic training, he turned himself in prior to the background check. His available official military record contains no information concerning any of these events. He left his unit in an AWOL status, upon his return to military control charges were preferred against him, and he voluntarily requested a discharge to a void a felony conviction, if he were found guilty. 13. His DD Form 214 shows no prior active service, however, the available evidence shows he completed honorable RA service from 27 June 1978 to 14 January 1982. This period of service equals 3 years, 6 months, and 18 days. His DD Form 214 does not show award of the Army Good Conduct Medal, it appears he may have completed 3 qualifying years for the award. 14. His under other than honorable conditions characterization of service was in compliance with the governing regulation. He completed 1 year and 11 months of his current enlistment obligation. 15. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency 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, record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board, based on a preponderance of evidence, determined that the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the correction statement in the Administrative Note(s) below. 2. 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 :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: With the exception of the correction stated in the Administrative Note(s) that follow, 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): A review of the applicant’s record shows his DD Form 214 for the period ending 14 December 1983 is missing an important entry that may affect his eligibility for post- service benefits. As a result, amend item 18 (Remarks) of his DD Form 214 by adding the following entry “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19780627 – 19820114.” 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. 1. Army Regulation 635-5 (Personnel Separations – Separation Documents) states for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except “honorable,” enter “CONTINEOUS HONORABLE ACTIVE SERVICE FROM" and specify the appropriate dates. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. 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. 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. 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 based on 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. ABCMR Record of Proceedings (cont) AR20190009313 5 1