BOARD DATE: 24 August 2020 DOCKET NUMBER: AR20190015602 APPLICANT REQUESTS: his under other than honorable discharge character of service be upgraded to a more favorable character of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, U.S. Code, 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 he had continuous honorable service from 1 December 1988 through 14 April 1992. On 15 April 1992, he immediately reenlisted in the Regular Army. He states, in effect, he had family problems which significantly contributed to his military troubles. He is not proud of what he did and if he had a choice to do it over, he would not make the choices he made. He wishes he could turn back time and honorably complete his second enlistment period. The reason he was separated and his resulting character of service have been on his mind for a long time. He believes in his heart that he wasn’t himself at the time he made a bad choice. 3. The applicant enlisted in the Regular Army on 1 December 1988. He completed training and received military occupational specialty 94B (Food Service Specialist). 4. His record maintained at the National Personnel Records Center and on the interactive Personnel Records Management System contains very few of his military personnel documents. Specifically, his personnel record does not contain his separation packet. However, it does contain the Service copy 2 of his DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged on 10 November 1993. His DD Form 214 contains the following pertinent information: * Block 12 (Record of Service) * Block 12a (Dated entered active duty this period) – 1 December 1988 * Block 12b (Separation date this period) – 10 November 1993 * Block 12c (Net active service this period) – 4 years, 9 months and 27 days * Block 12h (Effective date of pay grade) – 3 November 1993 * Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons awarded or authorized) shows he received the Army Good Conduct Medal * Block 18 (Remarks) – continuous honorable active service from 1 December 1988 to 14 April 1992; immediate reenlistment this period 15 April 1992 * Block 21 (Signature of member being separated) – shows the applicant signed his DD Form 214 acknowledging receipt * Block 23 (Type of Separation) – discharge * Block 24 (Character of Service) – under other than honorable conditions * Block 25 (Separation Authority) – Army Regulation 635-200 (Personnel Separations – Enlistment Personnel), chapter 10 * Block 28 (Narrative reason for separation) – in lieu of court-martial * Block 29 (Dates of time lost during this period) – under the provisions of Title 10, U.S. Code, section 972 he was absent from 2 September 1993 to 14 October 1993 (a period of 42 days not including the end date) 5. Although the applicant's complete separation packet was not available for the Board's review, in order for him to be discharged under the provisions of Army Regulation 635-200, chapter 10, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge. The applicant would have been afforded the opportunity to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court- martial. In doing so, the applicant would have admitted he was guilty of the offense(s) he was charged with and acknowledged that he could receive a discharge under other than honorable conditions. The applicant’s DD Form 214 shows he had an extended period of being absent without authority. His absence was under the provisions of Title 10, U.S. Code, section 972 (Members: effect of lost time) wherein he was absent from his organization, station, or duty for more than one day without proper authority, as determined by a competent authority. 6. Under the provisions of Article 86 of the Uniform Code of Military Justice the maximum punishment for absenting oneself from their unit, organization, or other place of duty for more than 30 days includes a dishonorable discharge, forfeiture of pay and allowances, and confinement for 1 year. If a service member who is absent for more than 30 days and terminated (return to duty) by apprehension the maximum punishment is dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months. 7. There is no evidence within the Army Review Boards Agency electronic case management system showing the applicant applied to the Army Discharge Review Board within its statutory limit of 15 years for a review of his discharge. 8. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. The applicant had no meritorious or valorous personal awards and insufficient evidence of mitigating circumstances for the misconduct. Furthermore, the Board found insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization that resulted from his misconduct. The Board agreed that the applicant’s discharge characterization as reflected on his DD Form 214 is appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X 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, U.S. Code, 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. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14, when a Soldier is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a stated an honorable discharge was given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b stated 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. d. Chapter 5, Section II (Secretarial Authority) provided for the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. e. Chapter 10 states that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge may at any time after the charges have been preferred, submit a written request for discharge for the good of the service in lieu of trial by court-martial. The written request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge. A discharge under other than honorable conditions was normally considered appropriate. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190015602 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1