IN THE CASE OF: BOARD DATE: 20 April 2020 DOCKET NUMBER: AR20190015069 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions (UOTHC) discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * Department of Veterans Affairs (VA) Letter, dated 22 March 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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: a. He was stationed in Germany in the 78th Engineer Battalion. Friends contacted him by mail who expressed grave concern for the safety of his then 15 year old sister. They conveyed to him that his sister was being kicked out of his mother’s house in and she was arriving in the, at three or four o’clock in the morning. The applicant went to the battalion chaplain who assisted him in being granted leave. He was to return home, go to court, get custody of his sister, and bring her back to Germany with him. b. At the advice of his platoon sergeant, when he arrived in the States, he went straight to Fort Hamilton, VA, to request a temporary attachment until the court case was settled in Family Court. To his surprise, he was denied temporary attachment. At that point he was burdened with the hardship of choosing between his career or the life of his only sister. No need to say which one he chose. He requested the temporary attachment because his mother was a chronic alcoholic and her only means of supporting her dependence of the disease was to maintain control of his sister’s Social Security check, which was her only source of income. In an attempt to keep it she continuously missed custody court dates, playing him against his leave time. It was at that point the refusal of his temporary attachment by Fort Hamilton, turned a very manageable situation into a clear and undeniable hardship. c. To add insult to injury, as what he saw as a strong arm tactic by one of the most powerful organizations on Earth, with its own justice system, he was told by his court appointed lawyer that it was well known what caused his hardship and the part the Army may have played in causing it. He was only being tried on the fact that he went absent without leave (AWOL) and he could not win because of the fact that he went AWOL as a result of the hardship. d. If he wanted a chance to fight the hardship he had two choices. He could fight it from inside military federal prison or accept an other than honorable discharge and fight for an upgrade back home in, in which this is his second attempt to do so. In 2020 it will be 30 years and this hardship has cost him enough pain and suffering. He hopes the Board sees it the same way. 3. Having prior enlisted service in the Army National Guard, on 11 May 1989, at the age of 21 years old, the applicant enlisted in the Regular Army. After completing his initial entry training, he was assigned overseas to Germany. 4. On 6 March 1990, his duty status changed from present to duty to AWOL. On 7 April 1990, he was dropped from the unit rolls. In 4 June 1997, he surrendered to military authorities at Fort Hamilton, NY and was assigned to the Special Processing Company, U.S. Army Personnel Control Facility. 5. On 6 June 1990, court-martial charges were preferred against the applicant for one specification of being AWOL from 6 March 1990 and remained absent until 4 June 1997. The commander recommended that he be tried by special court-martial empowered to adjudge a bad conduct discharge. 6. The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10, and he elected to make a statement on his own behalf. The applicant statement was similar to the statement he provided in his request for an upgrade with the following exceptions: a. He indicated that when he requested for the attachment to Fort Hamilton, he was told that his mother or sister had to either be terminally ill or dead for his request to be approved; they turned down his request. He asked, if there was anyone else he could speak with, possibly a superior. He was told that he could not. He did not want to cause a confrontation that would have resulted in severe consequences for himself and he did not want to leave his 11 year old sister in, to constantly be abused by his mother. He would not have been able to return for three years. The individual put him in a hardship position. If the individual would have given his situation some kind of consideration he would have worked at Fort Hamilton until his case was over and then returned to Germany to finish out his tour; he would have not went AWOL. b. The only reason that he did not return sooner was because he had to raise his sister and help raise her daughter. He pleads that who ever has the authority over his situation regarding his discharge status to not let him pay the ultimate price for standing by his sister because of his mother’s inability to raise his sister safely and properly and the individual at Fort Hamilton treated him and his situation unfairly and unimportant. He was sure there was some way he could have done something; after all the Army takes care of their own. 7. The applicant's chain of command recommended approval of his request and on 7 August 1997, the appropriate separation authority approved the applicant's request directing he be reduced to E-1 and issued a discharge under other than honorable conditions. 8. On 3 September 1997, he was discharged accordingly. His service was characterized as UOTHC. He completed 11 months and 16 days of net active service this period, with 7 years, 2 months, and 29 days (2647 days) lost time. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * He was awarded or authorized: * National Defense Service Medal * Army Service Ribbon * M-16 Rifle Expert Marksmanship Qualification Badge 9. The record is void of a separation medical examination and a mental status evaluation. 10. The applicant provides a VA Letter, dated 22 March 2019, which states the applicant was honorably discharged from the U.S. Armed Forces having served during periods 16 June 1988 to 25 October 1988 and 11 May 1989 to 3 September 1997. 11. The applicant states while on emergency leave, he requested to be attached to Fort Hamilton, NY, to give him the opportunity to appear in court for custody of his 15 year old sister (in his statement supporting his chapter 10, he stated his sister was 11 years old). His request was disapproved and it placed him in a hardship position. He went AWOL because of the dilemma he was facing between serving in the military and taking care of his sister. His record shows he enlisted at the age of 21 years old, he went AWOL 9 months and 10 days after being assigned to a unit in Germany and charges were preferred against him for being AWOL, which resulted in 2647 days lost time. a. In regards to the applicant's request for a personal appearance, Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. b. In regards to the VA Letter which states the applicant was honorably discharged from the U.S. Armed Forces; the VA and the Army operate under separate provisions of Federal law, and decisions made by the VA are not binding on the Army. c. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) 1984 included a bad conduct or dishonorable discharge. According to the MCM, Article 86, UCMJ –– absence without leave for more than 30 days, included a dishonorable discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 12. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. 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. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh 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 :XX :XXX :XXX 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 Army Board for Correction of Military Records (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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the Soldier'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. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) 1984 included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. According to the MCM, Article 86, UCMJ –– absence without leave for more than 30 days, included a dishonorable discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 3. 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. 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, 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. 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. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190015069 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 1