ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 July 2020 DOCKET NUMBER: AR20190012608 APPLICANT REQUESTS: an upgrade of his character of service from under other than honorable conditions (UOTHC) to under honorable conditions (general). 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) 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 he was a dedicated Soldier until his parents’ house burned down and he was not granted emergency leave. He states he had 38 days of excess leave at the time he was at Fort Dix, NJ and that he was told that his discharge would be under honorable conditions. The applicant states he knows it was wrong to go absent without leave (AWOL); however, he needed to ensure his family’s wellbeing. The applicant states he went to air assault school to be a better Soldier but it was all for nothing because of his other than honorable discharge. He asserts that his situation is so bad that he cannot even receive a veteran’s identification card. The applicant feels like he wasted 2 years and 4 months of his life. 3. The applicant enlisted in the Regular Army on 18 June 1980. After initial entry training, he was awarded military occupational specialty 16R (ADA Short Range Gunnery Crewman). 4. A DA Form 4465 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Client Intake Record), dated 13 April 1982, shows alcohol as the basis for the applicant’s enrollment into the program and Track 1 as the immediate disposition. 5. A DA Form 4466 (ADAPCP Client Progress Report), dated 3 May 1983, shows the applicant did not progress upon completion of the program. Item 10 on the DA Form 4466 shows the applicant’s counselor assessed the applicant’s progress as “not progressing,” during the rehabilitation phase. Item 11 shows the applicant’s commander appraised the applicant’s progress and military effectiveness as “Unsatisfactory.” The DA Form 4466 also shows that the applicant’s commander determined the applicant should be separated from active duty at the completion of the ADAPCP. The form further shows the applicant was pending a Chapter 5 (Separation for Convenience of the Government) discharge and was released from the ADAPCP at the request of the applicant’s commander. 6. A Medical Examination for Separation - Statement of Option, dated 17 May 1982, shows that the applicant understood that he was not required to undergo a medical examination for separation from active duty. He further understood that if he elected not to undergo a separation exam, a physician at the appropriate medical treatment facility would review his medical records, and if the review indicated that an examination should be accomplished, he would be scheduled for an examination based on the results of the review. The applicant also signed a Medical Examination for Separation Waiver showing that his medical records were screened. His medical records indicated that no medical problems were under treatment or previously evaluated. 7. A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) shows the applicant accepted nonjudicial punishment (NJP) on 17 June 1982 for failing to go to his appointed place of duty on 25 May 1982 and for failing to go to his appointed place of duty at the prescribed time, on 26 May 1982. 8. A DA Form 4187 (Personnel Action), dated 4 June 1982 shows the applicant departed his unit absent without leave (AWOL) at 0630 hours on 4 June 1982. A second DA Form 4187, dated 7 June 1982 shows the applicant returned to a present for duty (PDY) status, having surrendered himself to his unit, on 7 June 1982, at 0730 hours. 9. The applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was marked AWOL on 18 June 1982 and dropped from the rolls (desertion) on 18 July 1982. 10. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 6 July 1982, shows, a flag was initiated on 18 June 1982 due to AWOL. On 19 July 1982, the applicant had been AWOL for 30 days and his flag was transferred to the Commander of the U.S. Army Enlisted Records and Evaluation Center Absentee and Deserter Division at Fort Benjamin Harrison, Indiana. 11. On 28 June 1982, the applicant’s chain of command sent a letter to the applicant’s next of kin (his wife), informing her that the applicant was AWOL and stating the consequences of his continued absence from his unit. On 17 July 1982, the chain of command sent another letter to his next of kin that informed that the applicant had been dropped from the rolls and the consequences of his continued absence. 12. Two DA Forms 4187, dated 19 July 1982 and 26 July 1982 show the applicant departed his unit AWOL at 1800 hours on 18 June 1982 and he was dropped from the rolls on 18 July 1982. 13. Court-martial charges were preferred against the applicant on 26 July 1982 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about 18 June 1982 through on or about 10 September 1982. 14. A DA Form 4187 dated 16 September 1982 shows the applicant PDY at Fort Dix, NJ on 10 September 1982 after being AWOL from Fort Campbell, KY beginning on 18 June 1982. 15. A FDCF Form 691 (Personnel Control Military Information Sheet) shows the applicant was apprehended on or about 13 September 1982 and returned to military control at Fort Dix, NJ. The form shows the applicant stated he went AWOL because of a family problem. The applicant declined a physical and elected to leave military service. 16. The applicant consulted with legal counsel on or about 14 September 1982: a. He was advised of the basis for a contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. 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 elected not to submit any statements in his own behalf. 17. The applicant's immediate commander subsequently recommended approval of the applicant’s request that he be separated from the service and under the provisions of AR 635-200, paragraph 10, for the good of the service. The commander opined that the applicant had no motivation for continued service and would not respond to either counseling or rehabilitation. He further recommended an UOTHC discharge. 18. His intermediate commander recommended approval of the request and discharge with a characterization of UOTHC. 19. The separation authority approved the applicant's request for discharge on 21 September 1982, under the provisions of AR 635-200, Chapter 10, for the good of the service, and directed his reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 20. Orders 288-90, dated 15 October 1982 (effective 21 September 1982), reduced the applicant to the lowest enlisted grade and reassigned him to the U.S. Army Separation Transfer Point. 21. The applicant was discharged on 22 October 1982, under the provisions of AR 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. The DD Form 214 he was issued shows he was credited with 2 years, 1 month, and 13 days of net active service and his service was characterized as UOTHC. 22. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement (circumstances regarding the period of AWOL), his 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. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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 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. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. //Nothing Follows// ABCMR Record of Proceedings (cont) AR20190012608 6 1