IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20190008929 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 as he was not absent without leave (AWOL) because of a “civilian infraction and was incarcerated in a civilian jail.” He was in civilian custody and his unit was notified, upon release, he was reprimanded and stayed in military custody for 6 months with loss of pay and reduction in pay grade, and at no time was he ever evaluated for any mental health condition nor a substance use disorder. The regulation states before initiating a separation action for a pattern of minor military disciplinary infractions or for patterns of misconduct, you must counsel soldiers and take rehabilitative measures. a. Article 86-10 Item (6) Inability to return. The status of absence without leave is not changed by an inability to return through sickness, lack of transportation facilities, or other disabilities. But the fact that all or part of a period of unauthorized absence was in a sense enforced or involuntary is a factor in extenuation and should be given due weight when considering the initial disposition of the offense. When, however, a person on authorized leave, without fault, is unable to return at the expiration thereof, that person has not committed the offense of absence without leave. b. According to Article 86-10(d) Apprehension by civilian authorities at the request of the military. When an absentee is taken into custody by civilian authorities at the request of military authorities, the absence is terminated. Apprehension by civilian authorities without prior military request. When an absentee is in the hands of civilian authorities for other reasons and these authorities make the absentee available for return to military control, the absence is terminated when the military authorities are informed of the absentee's availability. c. Army Regulation (AR) 635-200 (Personnel Separations), paragraph 1-34, Medical examination. When you initiate separation of a soldier for misconduct, other than by conviction by a civilian court, you must schedule the soldier for both a medical examination and a mental status evaluation.(see AR 63 5-200, paragraph 1-34.) According to him, the evaluations were not completed. 3. The applicant enlisted in the Regular Army on 9 March 1982. He held military occupational specialties 12B (Combat Engineer). 4. On 15 April 1982, while still in training, he accepted nonjudicial punishment under the provisions of Article 15 for being drunk and disorderly while in uniform. 5. On 14 January 1983, he was reported in an AWOL status and on 14 February 1983, he was dropped from the rolls as a deserter. He returned to military control on 19 April 1983. 6. On 2 May 1983, he was again reported AWOL and immediately dropped from the rolls as a deserter. He returned to military control on 10 May 1983. 7. On 7 June 1983, he went AWOL a third time, and he was immediately dropped from the rolls as a deserter. He was apprehended by civil authorities on 31 August 1983 and returned to military control at Presidio San Francisco. 8. On 7 September 1983, court-martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) shows he was charged with three specifications of being AWOL from 14 January 1983 to 19 April 1983, 2 May to 10 May 1983, and 7 June 1983 to 31 August 1983. 9. On 7 September 1983, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and had not been subjected to any coercion by any person * he understood 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 understood that, if his request for discharge is accepted, he may be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate * he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law * he stated "under no circumstances do I desire further rehabilitation for I have no desire to perform further military service" * he did not elect to submit a statement in his own behalf 10. On 10 October 1983, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed that he be reduced to private/E-1 and issued an under other than honorable conditions discharge. The applicant was accordingly discharged on 20 October 1983. 11. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 10 (in lieu of trial by court-martial) of AR 635-200 with an under other than honorable conditions characterization of service. He completed 1 year, 1 month, and 3 days of active service. He was awarded or authorized: * Army Service Ribbon * Parachutist Badge * Expert Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Grenade Bar 12. There is no indication he petitioned the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 13. By regulation (AR 635-200), Chapter 10: 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. A discharge under other than honorable conditions is normally considered appropriate. 14. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the short term of honorable service completed prior to the misconduct leading to the applicant’s separation and a lack of mitigating evidence for the misconduct, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. 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, United States 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 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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. a. Paragraph 3-7a states 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 states 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. 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. 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. 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. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190008929 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1