BOARD DATE: 7 February 2020 DOCKET NUMBER: AR20190011191 APPLICANT REQUESTS: The applicant requests an upgrade of his bad conduct 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 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Self-Authored Statement * A List of Documents of Support * Nine Letters/Character References * Two Birth Certificates 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. 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 AR20110010457 on 29 November 2011. 3. The applicant states: a. He enlisted in the military on 7 April 1977. Later he graduated from basic training, in Fort Dix, NJ, as a squad leader. He also graduated from AIT (advanced individual training) as a wheel vehicle mechanic 63B (military occupational specialty (MOS)). In April 1978, he graduated from Jump (Airborne) School, in. b. He is requesting an upgrade from a bad conduct discharge to a general under honorable conditions discharge because the discharge was inequitable because it is based on incomplete information. Family stress caused him to make the irrational decisions to go AWOL (absent without leave) several times. While enlisted he routinely received calls from his sisters concerning the deteriorating health of his mother and grandmother. Unfortunately, in 1979 when he was stationed in Fort Bragg, NC, both his mother and grandmother became seriously ill. As the only male in his family, it was very stressful not to be there to support them. He was instructed not to inform his sergeant of his family crisis because he would be forced to take a hardship discharge which he did not want. Therefore, he never discussed his family problems with his sergeant. c. His mother was experiencing severe mental problems that made her a danger to herself. She regularly wandered off from home for hours and days at a time. After her death, she was diagnosed with a brain tumor. In addition, his grandmother, who was bedridden, had several stokes and was regularly in and out of the hospital. He went AWOL to assist and support his family in the care of his love ones. His military service up until that point was excellent. He was unable to manage the family stress that was taking place at home. d. Like his father, who was a first sergeant and received a Purple Heart, his life goal was to have an honored military career. Since he left the military he has lived a life of service. He is supporting his sister, Jennifer Haynes, after the death of her husband by helping her with chores around the house, taking her shopping and to doctor's appointments. In addition he helps several seniors in the community by helping with yard work and snow removal. He is also active with his church. 4. On 5 April 1977, at the age of 19 years old, the applicant enlisted in the Regular Army for a term of 4 years. 5. In connection with his enlistment, he completed a DD Form 1966 (Application for Enlistment ––Armed Forces of the United States) in which he listed his mother, his father, and seven females as his relatives (sisters). 6. His personnel qualification record –part II shows he was absent without leave (AWOL), or confined by military authorities (CMA) or imprisonment (IMPRSMT): * 16 October 1978 to 26 November 1978 (AWOL-42 days) * 2 February 1979 to 26 March 1979 (AWOL-53 days) * 31 May 1979 to 22 March 1980 (AWOL-297 days) * 23 March 1980 to 23 March 1980 (CMA-1 day) * 29 May 1980 to 2 September 1980 (IMPRSMT-97 days) * 30 September 1980 to 1 October 1980 (AWOL-2 days) * 6 October 1980 to 6 October 1980 (AWOL-1 day) * 8 October 1980 to 14 October 1980 (AWOL-7 days) * 17 October 1980 to 19 October 1980 (AWOL-3 days) * 22 October 1980 to 28 October 1980 (AWOL-7 days) * 7 November 1980 to 11 November 1980 (AWOL-5 days) * 14 November 1980 to 17 November 1980 (AWOL-4 days) * 18 November 1980 to 18 November 1980 (AWOL-1 day) * 27 November 1980 to 27 May 1981 (AWOL-182 days) 7. On 19 January 1979, the applicant accepted nonjudicial punishment (NJP) for, on two occasions, being AWOL from 2 October 1978 and remained absent until 4 October 1978 and 16 October 1978 and remained absent until 27 November 1978. 8. On 25 March 1979, he was assigned to the U.S. Army Personnel Control Facility (USAPCF), Fort Bragg, NC. 9. On 4 May 1979, he accepted NJP for being AWOL from 2 February 1979 and remained absent until 25 March 1979. 10. Headquarters, 18th Airborne Corps Orders, dated 25 May 1979, shows he was on orders to report to Fort Hood TX with a reporting date of 30 May 1979, with an assignment to the 16th Signal Battalion. The applicant did not report as ordered. 11. On 23 March 1980, the applicant surrendered to AWOL Apprehension Section, Fort Hood, TX and placed in military confinement. On 24 March 1980, he was released and returned to duty. 12. On 29 May 1980, he was convicted by special court-martial for one specification of being AWOL from 31 May 1979 to 23 March 1980. He was sentenced to a bad conduct discharge, confinement at hard labor for 4 months, and forfeiture of $299.00 pay for 4 months. On 17 July 1980, the court-martial sentence was approved. 13. On 2 September 1980 in connection with his discharge, he elected not to request a separation physical. 14. The convening authority suspended, for six months, the unexecuted portion of his sentence to forfeiture with an effective date of 3 September 1980. 15. The applicant went on a series of AWOLs from 19 September 1980 to 22 October 1980, in which he returned on 29 October 1980. 16. A Optional Form (OP) Form 41 (Routing and Transmittal Slip) shows the applicant was interviewed by an officer and indicated that the he tried to resolve serious personal issues in regards to his mother’s arrest and other matters but his platoon sergeant and others within his organization at the company and the PCF were not responsive. The applicant went AWOL to solve the issues. 17. The applicant request seven days leave from 31 October 1980 to 6 November 1980. The immediate supervisor recommended approval. The commander recommended disapproval and that the applicant be placed on excess leave indefinitely. Nevertheless, the battalion commander approved the applicant’s request for 7 days of ordinary leave from 31 October 1980 to 6 November 1980. On 7 November 1980, the applicant went AWOL and returned on 12 November 1980. On 14 November 1980, he went AWOL and returned on 18 November 1980 at 1300 hours and at 1630 hours he went AWOL again. On 19 November 1980, he returned to duty and was placed on excess leave. Effective 27 November 1980 his duty status changed from excess leave to AWOL. 18. On 9 December 1980, the U.S. Army Court of Military Review affirmed the finding of guilty and the sentence. 19. On 14 April 1980, the sentence was ordered executed. 20. On 27 May 1981, he was discharged accordingly. His service was characterized as bad conduct. He completed 2 years, 1 month, and 18 days of net active service this period. His DD Form 214 (Certificate of Release or Discharge from Active Duty) as amended by DD Form 214 (Correction to DD Form 214) shows: * His primary specialty: 63B Light Wheel Vehicle * Separation Authority: AR 635-200, Chapter 11 * Narrative Reason: As a Result of Court-Martial/Other * Dates of Time Lost During this Period: 781016 to 781126; 790202 to 790326; 800529 to 800906; 800930 to 801029; 801127 to 810527 (AWOL 408 days) 21. The applicant provided: a. A list of documents showing the documents submitted with the applicant's application. b. Two letters from the applicant's sister describing their mother's and grandmother's medical issues while the applicant was in the service. The letters state she is one of seven daughters and one son. During the period from 1978 to approximately 1981, their mother suffered a number of various health and behavior dysfunctions due to a brain aneurysm in which their family was unaware and she eventually passed due to her illness. During the period of 1977 to 1980, their grandmother, who was instrumental in helping to raise her grandchildren, became ill and came to an unfortunate end when she passed away, suffering two strokes. c. Two Birth Certificates, one presumed to belong to the applicant's mother and the other presumed to belong to his grandmother. d. Seven letters attesting to the applicants character as a friend. 22. On 13 October 1982, the Army Discharge Review Board, denied the applicant's petition to upgrade his characterization of service, determining that he was properly discharged. 23. On 29 November 2011, the ABCMR denied the applicant's petition to upgrade his characterization of service, determining that the evidence was insufficient to warrant an upgrade. 24. The applicant states family stress caused him to make the irrational decisions to go AWOL. While enlisted he routinely received calls from his sisters concerning the deteriorating health of his mother and grandmother. Unfortunately, in 1979 when he was stationed in Fort Bragg, NC, both his mother and grandmother became seriously ill. As the only male in his family, it was very stressful not to be there to support them. His record shows he enlisted at the age of 19 years old, he went AWOL on 12 occasions, he accepted two NJPs, and was convicted by a special court-martial for being AWOL, his DD Form 214 shows he had 408 days lost. 25. AR 635-200 (Personnel Separations – Enlisted Personnel) states 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. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and after completion of appellate review and after such affirmed sentence has been ordered duly executed. 26. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 27. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. 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: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the mitigated reasons provided by the applicant for the multiple AWOL offenses, as well as the documentary evidence submitted to support those reasons, as well as the strong character evidence showing the character of the applicant, the Board concluded that granting clemency in the case was warranted by upgrading the characterization of service to Under Honorable Conditions (General). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X 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 reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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. REFERENCES: 1. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states 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: a. An honorable discharge is a separation with honor. The honorable characterization will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment or current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. 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. c. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. d. Chapter 11 (Dishonorable and Bad Conduct Discharge) outlined the steps to be taken for the separation of Soldiers who had been convicted by courts-martial and for whom the punishment included a punitive discharge. It states an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, following the completion of an appellate review, and after such affirmed sentence had been ordered duly executed. 2. Title 10, section 1552 provides court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 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 (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 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. 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. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190011191 7 ABCMR Record of Proceedings (cont) AR20190011191 1