BOARD DATE: 2 March 2020 DOCKET NUMBER: AR20190013008 APPLICANT REQUESTS: The applicant requests upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board (ADRB)) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 always had a fascination for military uniforms and guns. a. While in high school, he participated in JROTC (Junior Reserve Officers' Training Corps) for 3 years; he knew from a young age he wanted to be a Soldier. He signed up for the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) during his junior year in high school and entered active duty upon high school graduation. After completing initial training, he was assigned to the 3rd Infantry Division, where he excelled and received several awards and commendations. b. The applicant states, in effect, what he enjoyed most was performing his unit's mission; he felt what his unit did was very important; in addition, he has fond memories of his fellow Soldiers and felt they shared a close bond. He expressed his belief the United States is the "greatest country in the world and I would proudly give my life and wearing that uniform and understanding what it stood for is something I'll always cherish." c. Before his third year of service, his chain of command promoted him to sergeant (SGT); around the same time, his first sergeant (1SG) made sergeant major (SGM) and was reassigned to the battalion. Whenever the 1SG (now SGM) needed to go somewhere, he always chose the applicant to be his driver; the applicant was a good Soldier. d. The applicant acknowledges the reason for his upgrade request is because he made a mistake. His mother had died about a year before he entered active duty, and her death was devastating; he nonetheless continued to serve his country for the next 3 1/2 years. During his last 6 months, his leadership placed him on temporary duty (TDY) at a location that was not far from home. While on TDY, his father became very ill and, since the applicant's home was nearby, he would go home to see his father on the weekends; the applicant affirms that sometimes he did not make it back on time, but he always returned. Ultimately, these absences caused him to receive an under other than honorable conditions character of service e. The applicant always accepted full responsibility for his bad decisions, but, at the time, he could not bear the thought of losing his father. He asks the Board to consider his circumstances, and understand that he is taking responsibility for his past misconduct; he contends he served his country proudly, and he would do so again, if given the opportunity. 3. The applicant's service record shows: a. On 7 November 1975, the applicant enlisted into the USAR DEP; he was 17 years old. On 8 September 1976, he was discharged from the USAR DEP and, on 9 September 1976, he enlisted into the Regular Army, in the rank/grade of private first class (PFC)/E-3, for a 4-year term. On completion of initial training, orders assigned him to the 3rd Infantry Division in Germany; he arrived at the 3rd Infantry Division on 10 January 1977. b. While in Germany, the applicant received three favorable evaluation reports (DA Forms 2166-5 (Enlisted Evaluation Report)); both his raters and indorsers made numerous favorable comments regarding the applicant's duty performance and potential. On 16 May 1979, the applicant completed his tour in Germany, and orders reassigned him to Fort Lewis, WA; he arrived at Fort Lewis on 16 July 1979. Effective 1 September 1979, his Fort Lewis chain of command promoted him to SGT. c. On 15 October 1979, the applicant's Fort Lewis unit reported him as absent without leave (AWOL). On 18 October 1979, Permanent Orders (PO) awarded him the Army Good Conduct Medal (1st Award) for the period 9 September 1976 through 8 September 1979. On 24 October 1979, the applicant returned to military control. d. On 19 November 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 15 to 24 October 1979 (9 days); the punishment consisted of 14 days extra duty and a forfeiture of $149 per month for one month. e. On or about 20 November 1979, the command's supporting legal office provided the applicant's immediate chain of command with a DA Form 2496 (Disposition Form), which explained a recent change to filing determinations for NJPs. Company and battalion commanders were now required to make recommendations as to whether the NJP should be placed in the Soldier's official military personnel file (OMPF), or be retained at the local level in the Soldier's field military personnel record jacket (MPRJ). The special court-martial convening authority would then make the final determination. (1) The company commander stated the applicant was a very good noncommissioned officer who showed a lot of potential, if given the proper guidance. The commander explained that the circumstances surrounding the applicant's AWOL reflected the applicant's poor judgment, but did not warrant permanent filing in the Soldier's OMPF. (2) The battalion commander concurred with the company commander's recommendation, stating the applicant's AWOL was a one-time incident; the battalion commander indicated the applicant recognized he had made a mistake and had learned a lesson. f. In February 1980, the applicant received a Senior Enlisted Evaluation Report (DA Form 2166-5A), in which the rater affirmed the applicant ranked with the very best and should be promoted immediately (the indorser did not provide a rating because he did not meet regulatory criteria). g. At some point prior to 25 March 1980, the applicant was sent on TDY to Aberdeen Proving Ground, MD; on 25 March 1980, his TDY unit reported the applicant was AWOL and dropped him from Army rolls on 24 April 1980. The applicant returned to military control on 6 May 1980 and was reassigned to the U.S. Army Personnel Control Facility (PCF) at Fort Lewis. h. On 12 May 1980, the applicant's PCF commander preferred court-martial charges against him for AWOL from 25 March until 6 May 1980 (42 days). On 14 May 1980, after consulting with counsel, the applicant requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and his counsel had advised him of the implications of his request; he further acknowledged he was guilty of the charge. He elected to submit the following statement in his own behalf, stating, in effect: (1) The applicant stated he was born in Georgia and had spent most of his life there. In Georgia, he had lived with his parents, brothers, and sisters; they were a close-knit family, but his mother subsequently passed away. While still in high school, he had considered entering the Army because he had participated in JROTC; on graduation, he first joined the USAR DEP, then went on active duty in September 1976. (2) The Army was everything he had expected, and, he contended, he had always done his best; after being awarded MOS 63B (Power Generator and Wheel Vehicle Mechanic), he served as a track mechanic in Germany, then a wheeled vehicle mechanic at Fort Lewis. His leadership promoted him to SGT in less than 3 years, and awarded him the Army Good Conduct Medal. The applicant also noted he had earned several certificates, as well as badges for safe driving and for being an expert mechanic. (3) The reason he went AWOL was because of problems at home; his father was in the process of divorcing the applicant's stepmother, but his father, along with the applicant's two younger brothers, were really struggling financially. The applicant's two older brothers and his sister were unable to help because they had families of their own to care for. The applicant felt (and he has always believed this), when he was needed at home, he had to be there to help. He noted he had gone AWOL the year earlier for similar reasons. (4) While at home and still in an AWOL status, his first cousin became very ill and almost died; Red Cross told him the military did not recognize first cousins when it came to granting emergency leave, so the applicant decided to continue being AWOL. (5) Although the applicant felt good about the Army, he believed the Army was starting to interfere with the way he wanted to live; he indicated he knew he could not adjust being reduced back to the rank of private, and he thought he might disgrace himself more if he remained on active duty. He stated he believed he could not be a Soldier anymore. i. On 23 May 1980, the separation authority approved the applicant's request and directed his under than honorable conditions discharge; he also ordered the applicant's rank reduction to private/E-1. On 29 May 1980, he was discharged accordingly; his DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he completed 3 years and 7 months of his 4-year enlistment contract, with lost time from 791015 through 791023 and 800325 through 800505. He was awarded or authorized the Army Good Conduct Medal (1st Award), Driver and Mechanic Badge with Driver-T and Mechanic Component Bars, and a marksmanship qualification badge. j. On 14 October 1980, the applicant petitioned the ADRB, requesting an upgraded character of service. (1) The applicant argued his achievements and dedication to the Army were outstanding; the offense addressed by his chapter 10 request was his only offense ever, and what he did could have been resolved with a company-grade NJP. (2) On 12 January 1982, the ADRB noted the positive aspects of the applicant's service record, but, because of his periods of AWOL, which resulted in NJP action and the applicant's chapter 10 request, the ADRB voted not to change the applicant's under other than honorable conditions character of service. 4. The applicant acknowledges he made a mistake and takes responsibility for his misconduct. He maintains, however, that he went AWOL due to his father's ill health. His mother had died prior to his entry on active duty, and her loss had devastated him; when his father got sick, he found he could not bear the thought of losing his father, so the applicant, in effect, decided he had to be there with him. a. Per the Manual for Courts-Martial that was in effect at the time, the maximum punishment for AWOL in excess of 30 days included a punitive discharge; Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and offered in-lieu of trial by court-martial. b. In reaching its determination, the Board should also consider the statements and evidence the applicant provided in conjunction with his military 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 of service, the frequency and nature of his misconduct, the charges against him, his request for discharge and the reason for his separation. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board considered the applicant’s overall record of service, a previous ADRB consideration and the statements he made regarding his reasons for his absences. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was too harsh and required a correction as a matter of clemency. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 29 May 1980 item 24 (Charater of Service to show – “Under honorable conditions (General)” vice “Under other than honorable conditions.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of his discharge to Honorable. 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 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 ABCMR determines it would be in the interest of justice to do so. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Commanders were to ensure the request for discharge was a personal decision, free of coercion, and that the Soldier was given a reasonable amount of time to consult with counsel. Once the Soldier made the decision to request discharge, he/she had to put it in writing and counsel was required to sign as a witness. Once approved, an under other than honorable conditions character of service was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed Article 86 (AWOL for more than 30 days), UCMJ, included a dishonorable discharge. 4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 7-64c (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 5. 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. 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. 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) AR20190013008 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 1