ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  24 February 2020 DOCKET NUMBER:  AR20190013483 


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20060006925 on 21 November 2006.  In effect, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 12 August 2019, with an unsignedstatement

.DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 21 May 1982

.Attachment 1 – Military Commendation Letters [four letters of appreciation]

.Attachment 2 – Mothers Death Certificate, dated 8 December 1988

.Attachment 3 – Letters of Recommendation [two character reference letters]



FACTS: 

1.Incorporated herein by reference are military records that were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket NumberAR20060006925 on 21 November 2006.

2.As a new argument, the applicant states, in effect:

a.He acknowledges he did file for an upgrade of his UOTHC discharge; he receivednotification of his denied request in the Department of the Army's letter dated  28 November 2008.  He further acknowledges that he did not request reconsideration of this decision within the required one-year period.  He was unaware until on or about  15 April 2019 that he had new evidence to provide to rebut this decision, because he can offer compelling circumstance to justify his unauthorized absences under Title 38,  U.S. Code (USC), Section 5303 [certain bars to benefits]. 









b. He enlisted at the age of 23 and had served about two years (one year and11 months) of a three year enlistment when he was discharged UOTHC for going absent without leave (AWOL).  He was less than two months shy of serving his total enlistment period.  He acknowledges his three AWOL periods (5 February through  10 April 1980; 31 May through 6 June 1981; and 16 July 1981 through 31 March 1982) resulted from his concern for his mother’s well-being, justified in Title 38 of the Code of Federal Regulations (CFR), citing in the Summary and Request Section of this statement).  His judgmental maturity at the time he went AWOL should be considered under this same regulation.  He did turn himself in rather than being apprehended after his last AWOL period.  He surrendered on or about the first part of January of 1982. c. His AWOLs were due to his concern related to his mother's illnesses.  This wasnot offered as evidence in his previous request for an upgrade.  His father died when he was about 17 years old and he became "the man of the house" to care for his mother (he had an older brother but he was out of the home and unable to care for their mother).  His mother's state of health and well-being was of paramount importance to him.  Any threat to her engendered a protective response in him and he had to respond.  The last period of AWOL occurred immediately after he returned from a brief period of AWOL due to her illness, and he went AWOL again because her health deteriorated to a dangerous point (she had a blood clot in her brain that required surgery).  Although his mother did not pass away until , at the time of his last AWOL, he had every reason to believe (based on information from her doctor and his brother) that she was dying and he was put in an impossible position.  He faced the choice of ignoring his mother's deteriorating health and remain with his unit, or returning to be by her side, at what turned out to be his last time with her. d. He also had two non-judicial punishments administered on 14 May and 22 June 1981, for failure to go at the prescribed time to his appointed place of duty.  As a young man, he was very worried about his mother's condition and made the choice of focusing on her needs.  Understanding that he had been, and was still, the only one responsible for taking care of her, his not focusing on his military job but rather than on her needs is understandable, especially for a young man away from home for the first time.  As one of the key values of today's Army is selfless service, his behavior concerning his mother's care is an example of this. e. He requested leave after he returned from his second AWOL but the Red Cross was unable to secure this leave request.  He was forced to confront the probability that his mother would die without him at her side.  Again, for a 24 year-old man who had accepted the responsibilities of caring for his mother after his father's death, this was not an acceptable choice. f. After leaving the military, he spent almost 22 years suffering from heart disease, depression, and recovering from back surgery.  He fell into a pattern of substance abuse and finally achieved sobriety in 2003, when he was taken into the Albany Housing Coalition's Veterans House in Albany, NY.  His drive and willingness to better 
himself impressed the staff and he was offered a full-time position in 2004, starting as a Case Manager assisting other veterans.  He maintained employment with this veteran's assistance program and is now a Senior Case Manager.  He earned the following credentials: CASAC-T (a professional credential to do substance abuse counseling), he is a Certified Medication Dispenser, he is a peer-to-peer mentor and he has begun attending college working towards his professional degree. 

g.He contends that although he freely admits his transgressions while on activeduty, they were due to his concern over his mother's deteriorating medical condition and his acknowledgement and acceptance of his duties as her caretaker.  He asks that the stress he was under at that time, and his age and maturity level regarding his ability to choose between assisting his mother and fulfilling his military obligations, be considered.  He served almost 70% of his enlistment with only minor infractions other than the AWOLs to tend to his mother.  He achieved success while on active duty, as attested to by the letters of appreciation.  Thus he request an upgrade due to: 

.the quality of his military service, as attested to by the commendation letters

.he turned himself in after his mother's death to face the consequences of hisAWOL

.the reasons for his AWOL's, as previously mentioned, should be compellingcircumstances to justify him going AWOL, as cited in 38 C.F.R. 3.12(c)(6)(ii)

.he has been an example to other veterans returning from military service withbehavioral/substance abuse issues



3.The applicant enlisted in the Regular Army on 2 July 1979.

4.The applicant received a company grade letter of reprimand on 15 January 1980, inwhich he was admonished for being habitually late in reporting for duty at the U.S. ArmyReception Station, Fort Dix, NJ.

5.Court-martial charges were preferred against the applicant on 12 June 1980, forviolations of the Uniform Code of Military Justice (UCMJ).  He was charged withabsenting himself from his unit, at Fort Dix, NJ, from on or about 5 February 1980through on or about 10 April 1980.  His sentenced included confinement at hard laborfor two months; a forfeiture of pay; and reduction to the rank/grade of private/E-1.  Thesentence was approved on 25 June 1980 and ordered duly executed.

6.The applicant accepted nonjudicial punishment (NJP) on 22 June 1981, under theprovisions of Article 15 of the UCMJ, for:

.four specifications of failing to go at the time prescribed to his appointed place ofduty, on or about 14 May 1981; on or about 28 May 1981; on or about 3 June1981; and on or about 10 June 1981


.absenting himself from his unit, from on or about 31 May 1981 until on or about3 June 1981



7.Court-martial charges were again preferred against the applicant on 2 April 1982, forviolations of the UCMJ.  The relevant DD Form 458 (Charge Sheet) shows he wascharged with absenting himself from his unit, at Fort Dix, NJ, from on or about 16 July1981 through on or about 1 April 1982.

8.The applicant consulted with legal counsel on 5 April 1982 and was advised of thebasis for the contemplated trial by court-martial, the maximum permissible punishmentauthorized under the UCMJ, the possible effects of a less than honorable discharge,and the procedures and rights that were available to him.

a.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial.  In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charges 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. 

b.He was advised he could submit any statements he desired in his own behalf;however, he elected not to submit any statements. 

9.The applicant's chain of command recommended approval of his request fordischarge on 12 April 1982, under the provisions of Army Regulation 635-200,Chapter 10, and recommended he receive a UOTHC discharge.

10.The separation authority approved the applicant's request for discharge on
20 April 1982, under the provisions of Army Regulation 635-200, Chapter 10, in lieu oftrial by court-martial.  He directed the applicant be reduced to the lowest enlisted gradeand issued a DD Form 794A (UOTHC Discharge Certificate).

11.The applicant was discharged on 21 May 1982, under the provisions of ArmyRegulation 635-200, Chapter 10, in lieu of trial by court-martial.  The DD Form 214 hewas issued confirms he was discharged in the lowest enlisted grade and his servicewas characterized as UOTHC.

12.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,
Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 

13.The applicant petitioned the Army Discharge Review Board (ADRB) for an upgradeof his discharge; however, the ADRB denied his request on 25 September 1984.

14.The applicant applied to the ABCMR for an upgrade of his UOTHC discharge;however, the Board denied his request on 21 November 2006.

15.The applicant submitted the following in consideration of his case:

a.Four letters of appreciation, dated; 30 January 1981; 2 June 1981; 11 June 1981;











and 16 June 1981. b. His mother’s death certificate, showing she died from natural causes on. c. A character reference letter dated 6 August 2019, attesting that the applicant was hired as a case manager for homeless veterans, after receiving treatment himself; is now a senior case manager; serves veterans with distinction and honor; his hard work led the facility receiving Veterans Administration Secretary's Award. d. Another character reference letter dated 6 August 2019, attesting that theapplicant has been an asset as a senior case manager, responsible for the care and welfare of over 34 homeless veterans.   16. The Board should consider; the applicant's request; his post service accomplishments; and the provided statements 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 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 request for discharge and the reason for his separation.  The Board found evidence of in-service mitigation and considered his evidence of post-service achievements and letters of reference sufficient to support a clemency determination.  After reviewing the application, the supporting documents, the records, applicable regulations, and the facts above, the Board found as a matter clemency that relief is warranted to amend the decision of the ABCMR set forth in Docket Number AR20060006925 on 21 November 2006 as recommended in the Board Determination and Recommendation below. 



BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 

:XXX :XX :XXX GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The Board determined that the evidence presented was 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 showing general under honorable conditions characterization of discharge for the period of service ending on 21 May 1982. 


X CHAIRPERSON

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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Title 38, U.S. Code, Section 5303 prescribes laws and regulations pertaining tocertain bars to benefits, and states a discharge or dismissal for a sentence of a generalcourt-martial, or a discharge on the grounds of desertion, or on the basis of an absence
without authority from active duty for a continuous period of at least 180 days.  If such person was discharged under conditions other than honorable; unless they can demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence, shall be barred all rights under laws administered by the Secretary; based upon the period of service from which discharged or dismissed.  Notwithstanding any action subsequent to the date of such discharge by a board established pursuant to Title 10, Section 1553. 

3.Title 38, CFR, Chapter 1, Part 3, Section 3.12, prescribes laws and regulationspertaining to characters of discharge.

a.Paragraph (c)(6) states:

By reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days.  This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence.  This bar applies to any person awarded an honorable or general discharge prior to October 8, 1977, under one of the programs listed in paragraph (h) of this section, and to any person who prior to October 8, 1977, had not otherwise established basic eligibility to receive Department of Veterans Affairs (VA) benefits.  The term established basic eligibility to receive VA benefits means either a VA determination that an other than honorable discharge was issued under conditions other than dishonorable, or an upgraded honorable or general discharge issued prior to October 8, 1977, under criteria other than those prescribed by one of the programs listed in paragraph (h) of this section.  However, if a person was discharged or released by reason of the sentence of a general court-martial, only a finding of insanity (paragraph (b) of this section) or a decision of a board of correction of records established under 10 U.S.C. 1552, can establish basic eligibility to receive VA benefits.   

b.Paragraph (c)(6)(ii) states:

Reasons for going AWOL.  Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties.  The reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity.  Consideration should be given to how the situation appeared to the person himself or herself, and not how the adjudicator might have reacted.  Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began. 

4.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 
 
 a.  Paragraph 3-7a states 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. 
 
 b.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to Soldiers 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 Department of Veterans Affairs (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 was normally considered appropriate. 
 
5.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018, 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 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//