ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20190013352 APPLICANT REQUESTS: an upgrade of his character of service from under other than honorable conditions (UOTHC) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 26 September 2019 * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 30 September 2019 * DD Form 293, dated 10 October 2019 * DA Form 3835 (Notice of Unauthorized Absence from U.S. Army) dated 31 July 1985 August 1985 * DD Form 458 (Charge Sheet), dated 31 July 1985 * DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), dated 23 August 1985 * Orders 262-86, issued 19 September 1985 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for ending period 2 October 1985 * Privacy Act Waiver/Authorized Release of Information form, dated 23 September 2019 * National Personnel Records Center correspondence, dated 24 September 2019 * Congressional inquiry letter and email correspondence, dated 16 October 2019 * Applicant letter sent to congressional leadership, dated 30 September 2019 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 his contract at the time of his discharge was invalid, and he did not receive enough time to make a decision. He did not see or hear about his contract afterwards. When he entered the Army, his contract was invalid because it was listed as two years and 19 weeks. About a year into his service, he along with some other Soldiers in his unit were offered the decision to stay in the U.S. Army or go home. The applicant and the other Soldiers had to make a life-altering decision in under a minute. The applicant felt rushed and pressured into saying yes. Unfortunately, he found out his mother was ill and left his unit to return home. At this point in his life, the applicant feels hindered by a quick and nerve wracking decision. He is trying to better himself and be able to have a better life for his family. He did his time and faced the consequences for something he did not fully understand when he was discharged. Over twenty years later, the applicant continues to feel punished by an unjust reenlistment. He would be grateful to have his characterization of service upgraded and put the current harsh status behind him. 3. The applicant enlisted in the Regular Army on 23 October 1984. After initial entry training, he was awarded military occupational specialty 11B (Infantryman). 4. Two DA Forms 4187 (Personnel Action), dated 20 June 1985 and 16 July 1985, and the applicant's DA Form 2-1 (Personnel Qualification Record) show: * he departed his unit absent without leave (AWOL) at 0630 hours on 19 June 1985 * He returned to a present for duty (PDY) status, having surrendered himself to his unit, on 16 July 1985, at 0940 hours. 5. Two additional DA Forms 4187, dated 19 July 1985 and 31 July 1985; a DD Form 3835 provided by the applicant; and his DA Form 2-1 show: * he departed his unit AWOL at 1900 hours on 17 July 1985 * he was dropped from the rolls on 31 July 1985 * he was apprehended by civilian authorities and returned to military control on 15 August 1985 * his duty status change to PDY on 15 August 1985 6. A Medical Examination for Separation - Statement of Option, dated 22 August 1985, shows 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. 7. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 19 June 1985 to 16 July 1985 and from on or about 17 July 1985 to 15 August 1985. 8. A FDCF Form 691 (Personnel Control Military Information Sheet) dated 22 August 1985 shows the applicant was apprehended and returned to military control at Newport Naval Base. The form shows the applicant stated he went AWOL because of a family problem; he stated his father and mother were ill and that he had problems with his chain of command. The applicant declined a physical and elected to leave military service. 9. The applicant consulted with legal counsel on or about 23 August 1985: 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. 10. 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 he would not respond to either counseling or rehabilitation. He further recommended an UOTHC discharge. 11. The separation authority approved the applicant's request for discharge on 9 September 1985, 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. 12. Orders 262-86, dated 19 September 1985 (effective 9 September 1985), reduced the applicant to the lowest enlisted grade and reassigned him to the U.S. Army Separation Transfer Point. 13. The applicant was discharged on 2 October 1985 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 9 months, and 15 days of net active service; 3 months and 27 days of inactive service; dates of time lost were 19 June 1985 to 15 July 1985, and 17 July 1985 to 14 August 1985; and his service was characterized as UOTHC. 14. 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, 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) AR20190013352 5 1