IN THE CASE OF: BOARD DATE: 15 November 2019 DOCKET NUMBER: AR20190010788 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release of Discharge from Active Duty) for period ending 22 December 1982 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: a. In 1982, due to family issues, he was unable to complete his tour of duty in the Army. His discharge was other than honorable, which he would like to correct to a general discharge. In July 1982 he was transferred from Fort Carson, CO, to Schofield Barracks, Hawaii. He went home on leave to Flandreau, SD, before transferring to Hawaii. During this time he was not on speaking terms with his father due to some disagreements. While on leave between duty stations he planned to fix the relationship between him and his father. It had been almost a year since they had spoken to each other. Before he was able to talk to his father he passed away from a massive heart attack. b. This life changing event caused a major hardship in his life which he was not mentally or emotionally able to properly deal with. At that time, he had been married for almost a year and his wife was pregnant. With his transfer to Hawaii he did not think he would be able to be with his wife during the birth of their son. Because of the deep depression he found himself in, he was unable to deal with his mental health issue so he turned to alcohol to cope. c. The applicant did speak to a chaplain while in Hawaii and asked him if there was any way he could be transferred back to Fort Carson, CO. The chaplain indicated that he did not think there was. He attempted to deal with his depression himself but continued to spiral down with his alcohol abuse. At the time, he did not see any other way of dealing with it except to go home to South Dakota. He finally sought counseling to deal with his father's death and his alcohol abuse. It took years of counseling to deal with these issues and to get his life in order. How he ended his military service has always been a regret in his life to the point that he rarely talks about his time in the Army. He was proud to serve in the military but ashamed of the way he left. 3. On 7 January 1981, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 4 years. On 9 April 1982, he extended his enlistment by 7 months. 4. On 3 December 1982, court-martial charges were preferred against the applicant for one specification of being absent without leave (AWOL) from 27 July 1982 and remaining absent until 24 November 1982. 5. On 7 December 1982, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 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 AR 635- 200, chapter 10. He elected to submit a statement on his own behalf. He completed a questionnaire and explained: a. He was home on leave and his wife's close uncle passed. About a week later his father died. He reported back to his duty station when his leave ended. His wife was pregnant and having problems and he felt he needed to be home with his family. He could not concentrate on his duties. He wanted out of the Army because he felt that he was needed at home; she was due to have the baby in January and was having a lot of pregnancy problems. She was admitted to the hospital and he would like to start his life over with his family and his mother. He recently lost his brother a few years ago. He wanted to spend the rest of his life with his family. b. He believed he could have prevented committing the offense if he would have went through the proper channels to try and get discharged without going AWOL. He needed to be close to his family; but if his request was disapproved, he supposed he would be willing to complete his enlistment obligation even if he was court-martialed, if the Army gave him no other choice. Both his wife and he have had bad luck in life; his wife lost her mom when she was 12 years old, so she doesn't have much of a family. They would both like to settle down and start building a home. 6. The applicant's chain of command recommended approval of his request, the case was legally reviewed by the Staff Judge Advocate, and on 10 December 1982, the appropriate separation authority approved the applicant's request directing that he be issued an Under Other Than Honorable Conditions Certificate and he be reduced to the lowest enlisted grade. 7. On 22 December 1982, he was discharged accordingly. His service was characterized as UOTHC. He completed 1 year, 7 months, and 11 days of net active service this period, with 1 month and 12 days of Foreign Service. His DD Form 214 shows: * He was awarded or authorized: * Army Service Ribbon * M-16 Rifle Marksman Marksmanship Qualification Badge * Hand Grenade Expert Marksmanship Qualification Badge * Dates of Time Lost During This Period: 820727 – 821123 (AWOL for 120 days) 8. The applicant provides DD Form 149 and DD Form 214 for period ending 22 December 1982, both previously discussed. 9. The applicant states in 1982, due to family issues, he was unable to complete his tour of duty in the Army. His discharge was other than honorable, which he would like to correct to a general discharge. His record shows he enlisted at the age of 18 years old, charges were preferred against him for one specification of being AWOL, and he had 120 days lost time due to being AWOL. He completed 1 year, 7 months, and 11 days of his 4 years and 7 months contractual obligation. 10. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. 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. 11. In reaching its determination, the Board can consider the applicant’s petition and service record 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 and length of service, the frequency and nature of his misconduct, his apprehension, his request for discharge and the reason for his separation. The Board considered his stated reasons for his absence at the time of his separation, found the circumstances sufficiently mitigating for the misconduct and further found that the discharge he received was too harsh. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation should be corrected as a matter of clemency. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214 for the period of service ending 22 December 1982 to reflect in item 24 (Character of Service) – “Under honorable conditions, (General)” vice “Under other than honorable conditions.” 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. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled 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. 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. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) 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. 3. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190010788 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190010788 6 ABCMR Record of Proceedings (cont) AR20190010788 5