BOARD DATE: 13 March 2020 DOCKET NUMBER: AR20190014490 APPLICANT 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 293 (Application for Review of Discharge from the Armed Forces of the United States), dated 8 September 2019 * DD Form 214 (Certificate or Release Or Discharge from Active Duty), for the period ending 29 February 1984 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective date 3 October 1984 * NGB Form 22A (Correction to NGB Form 22), correction date 21 March 1985 * Orders 107-362, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK on 17 April 1985 * Orders 238-201, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK on 26 August 1985 * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 18 October 1985 * Memorandum of Record, issued by the Executive Officer, Special Processing Company, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox on 11 February 1986 * DD Form 214 (Certificate or Release Or Discharge from Active Duty), for the period ending 21 March 1986 * DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 10 January 1990 * Four Calhoun Community College Certificates * Phi Theta Kappa Honor Society Certificate * Phi Theta Kappa Certificate of Recognition * Four character reference letters 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, in effect, he believes that because of the issues that led to his discharge, and because he has led a productive life in his community, he should be granted clemency and his discharge should be upgraded. a. He was 20 years of age when he was discharged and his cognitive development was still incomplete; accordingly, this allowed for bad and unjust decisions on his part. After his discharge, he remarried, had two additional children, and now has five grandchildren. He is a member at the local Masonic Lodge and a Shriner, helping crippled and burned children. He was a previous member of the Moose Lodge and was a board member of the Associated Locksmiths of America. He also tried to defend his country and tried to re-enter the active military during Operation Desert Shield. b. The documentation concerning his time of service during his discharge proceedings is in conflict; his claim of harassment was voiced to First Sergeant (1SG) RXXXX LXXXXX and his unit chaplain. He feels the contradicting statement provided by Captain (CPT) CXXXXXX, who stated he was his battery commander during his difficult time, was not true. He had no knowledge of CPT CXXXXXX during his assignment to Bravo Company, 2nd Battalion, 2nd Field Artillery Regiment; therefore, he could not have known of his attempts to alleviate the problem he was having. He believed that the statements written by CPT CXXXXXX directly affected the character of his discharge. He had an exemplary record prior to being assigned to Bravo Company, 2nd Battalion, 2nd Field Artillery Regiment. He respectfully requests an upgrade to his discharge and hopes consideration is made with the evidence he has provided. 3. Following prior honorable service in the Army National Guard, the applicant enlisted in the Regular Army on 14 February 1985. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the UCMJ, on the following dates: * on 30 July 1985, for without authority, failing to go at the times prescribed to his appointed place of duty, on or about 21 July 1985 and on or about 22 July 1985 * on 18 October 1985, for absenting himself from his place of duty, from 0615 formation until 0745 hours, on or about 7 October 1985 * on 4 November 1985, for without authority, failing to go at the time prescribed to his appointed place of duty, on or about 24 October 1985 5. Court-martial charges were preferred against the applicant on 30 January 1986, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about 20 November 1985 through on or about 24 January 1986. 6. The applicant consulted with counsel on 3 February 1986. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions 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 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 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 was advised he could submit any statements he desired in his own behalf. He elected to submit a statement in his own behalf, in which he stated, in effect, that he did knowingly absent himself without leave on or about 20 November 1985. He eventually became a deserter. He cited the following as reasons for this offense: (1) He received harassment from the Chain of Command. (2) He received three Article 15’s for: (a) missing charge of quarters (CQ) duty, charges were suspended. (b) being late for physical training (PT), he was reduced to the grade of E-2 and forfeited $150.00 pay for one month and extra duty. (c) being late for PT, he was reduced to the grade of E-1 and forfeited $310 pay for two months, 45 days of extra duty and 45 days of restrictions. (3) He felt that he could not support his family and deal with his family issues at the time of the offenses. His wife moved and asked for a divorce. He requested a compassionate reassignment or a Chapter 16 which both were denied, he could not handle all the pressure. 7. The separation authority approved the applicant's request for discharge on 19 February 1986, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and further directed his reduction to private/E-1 and the issuance of a UOTHC discharge. 8. The applicant was discharged on 21 March 1986, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 9. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel 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. 10. The applicant provides four character reference letters that attest to him being a hard worker who is responsible and respectable. He knows and understands the value of commitment and is honest, loyal, caring, and helpful to his friends and family. He has been a great friend for almost 50 years. He has medical issues and he needs consideration regarding his discharge. 11. 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, the preferred charges, the request for discharge and the reason for his separation. The Board found some evidence of in- service mitigation to overcome the misconduct and the applicant provided evidence of post-service achievements or four character reference letters 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 required correction as a matter of clemency. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 amending the DD Form 214 for the period of service ending 21 March 1986 to reflect in item 24 (Character of Service) – “Under honorable conditions (General)” vice “Under other than honorable conditions.” 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. 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. 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) AR20190014490 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014490 7 ABCMR Record of Proceedings (cont) AR20190014490 5