IN THE CASE OF: BOARD DATE: 31 March 2020 DOCKET NUMBER: AR20190012794 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions character of service to honorable. He further requests a personal appearance before the Board. 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 of Dismissal) * self-authored statement, dated 22 July 2019 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, 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, in effect, that: a. While stationed in Germany he was granted leave after receiving a Red Cross message that his mother had passed away in. While making arrangements, his grandmother passed away in. The Army did not grant him an extension on his leave due to the fact that his grandmother was not considered immediate family. Being that no one was left to bury his grandmother he decided to go absent without leave (AWOL). b. He eventually returned to Fort Dix, NJ and subsequently ended his military service at Fort Hamilton, NY. In the last several years, he has suffered a stroke and has other health issues and only receives social security benefits which he cannot live on. He would like an upgrade of his discharge so he can get veteran benefits and medical attention. 3. The applicant enlisted in the Regular Army on 8 January 1991. He was assigned to the 570th Military Police Company in the Federal Republic of Germany as his first duty station in military occupational specialty 94B (Food Service Specialist). 4. The applicant was reported AWOL on 19 October 1991. He was dropped from the rolls of the Army on 19 November 1991. 5. Orders 152-76, issued by Headquarters, Fort Dix, dated 1 June 1993 shows he was assigned to the Personnel Control Facility (PCF), Fort Dix, NJ on 8 July 1992 after being apprehended by civilian authorities and returned to military authorities. 6. The Commander, PCF, Fort Dix on 15 June 1993 initiated separation under administrative board proceedings in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-5, for conviction by civilian authorities. The reason for the proposed action was the applicant's arrest and conviction of criminal possession of stolen property, 4th degree. a. The applicant acknowledged and consulted with legal counsel on the same date. b. The applicant understood his rights, requested consideration of his case by an administrative separation board, agreed to appear before the board, and declined to submit any statements in his own behalf. 7. DA Forms 4187 (Personnel Action), both dated 12 July 1993 shows the applicant's status changed from " Present for Duty" to "AWOL" and "AWOL" to "Dropped From Rolls." It was also noted the applicant had a previous AWOL and was apprehended by civilian authorities for grand theft auto. 8. Orders 224-81, issued by Headquarters, Fort Dix, dated 12 August 1993 shows he was assigned to the PCF, Fort Dix effective 12 August 1993 after being apprehended by civilian authorities in Queen, NY and returned to Fort Hamilton, NY. 9. A memorandum, dated 12 August 1993 shows the applicant indicated he did not desire a separation medical examination. The form further indicates that a medical examination was completed on the applicant 18 June 1993; however, it is unavailable for review. 10. A DD Form 458 (Charge Sheet), dated 13 August 1993 shows court-martial charges were preferred against the applicant for being AWOL from his organization: PCF, Fort Dix, NJ, from on or about 9 July 1993 to on or about 12 August 1993 (a period of 35 days). 11. After consulting with legal counsel on 13 August 1993, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court- martial. In doing so, the applicant acknowledged that the charges preferred against him under the Uniform Code of Military Justice (UCMJ) authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * by submitting the request, he was acknowledging he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized imposition of a bad conduct or dishonorable discharge * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge * he was advised he could submit any statements he desired in his own behalf, and elected to do so 12. In a memorandum for his commander, dated 13 August 1993, the applicant requested a general, under honorable conditions discharge, pursuant to his chapter 10 request. He noted he understood he was wrong in going AWOL, but had to care for his family in the wake of his mother and grandmothers' deaths. He was arrested in New York City for stealing a vehicle and ultimately served a year in prison. While in prison, his wife began using drugs and spent his inherited money. After reporting back to Fort Dix after prison, he became aware that his children were in danger, since his wife was back on drugs; therefore, went AWOL again. 13. The applicant's immediate and intermediate commanders recommended approval of his chapter 10 request on 6 and 18 October 1993 respectively, with an under other than honorable conditions discharge, and forwarded his request to the approval authority. 14. The approval authority approved the applicant's request for discharge on 4 November 1993, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He directed the applicant’s reduction to the lowest enlisted grade and his discharge with an under other than honorable conditions character of service. 15. The applicant was discharged on 9 December 1993. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with completing 1 year, 2 months, and 23 days of net active service, and he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. His service was characterized as under other than honorable conditions. Additionally, he had lost time from 9 July 1993 through 11 August 1993 he had excess leave time from 13 August 1993 through 9 December 1993 (a period of 119 days). 16. There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 17. The applicant requested a personal appearance hearing. Army Regulation 15-185 (ABCMR) states, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 18. 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. 19. The applicant provided statements on his applications and a self-authored statement that the Board should consider the applicant's statement 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 of service, the frequency and nature of his misconduct, his apprehension and return to military control, the charges against him, his request for discharge and the reason for his separation. The Board considered his memorandum pursuant to a request for Chapter 10 reflecting his incarceration and personal losses. The Board found insufficient evidence of in-service mitigation to overcome the misconduct 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. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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 :X :X :X 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service. 4. 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) AR20190012794 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1