ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  15 March 2022 DOCKET NUMBER:  AR20210014065 


APPLICANT REQUESTS:  Upgrade of the former service member's (FSM) under other than honorable discharge.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.two Certificates of Birth

.Certificate of Marriage

.Certificate of Death

.Honorable Discharge Certificate

.Basic Noncommissioned Officer Course (BNCOC) Certificate

.Certificate of Achievement

.DD Form 214 (Certificate of Release or Discharge from Active Duty)

.Individual Soldier's Report



FACTS: 

1.The applicant did not file within the 3-year time frame provided in Title 10 (ArmedForces), United States Code (USC), section 1552 (b) (Correction of Military Records:Claims Incident Thereto). However, the Army Board for Correction of Military Records(ABCMR) conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant, the FSM's widow, states in effect,

a.The FSM had finished one tour with an Honorable Discharge on 21 September1980. During his second tour, his tanker team was dismantled at Fort Hood.  The acting first sergeant (1SG) told the FSM he was going to bust him on the second day. The FSM was a sergeant (SGT) and felt lost, singled out, and demeaned in front of his new unit. The FSM was a tank gunner and armor crewman. In Texas his tank was one of three crews, out of the battalion, to qualify out of the battalion because he was the best at his job with his prior unit.  
b.The FSM's first tour, his military records showed he was a dedicated Soldier andmentor, during his deployment to Germany, during the Cold War, at the age of 17 years old. The FSM thrived and took courses. It took the FSM two years to go through the noncommissioned officer education system and attain the rank of SGT before he was discharged with an Honorable Discharge when he reenlisted.  The FSM felt ashamed his whole life after his separation from the Army and for the good of the service. He felt it brought shame to himself and to his country.  

3.The applicant provides the following documents for the Board's consideration:

.the FSM's Certificate of Live Birth

.the applicant and FSM's Certificate of Marriage

.the applicant's Certificate of Live Birth

.the FSM's Certificate of Death

.the FSM's Honorable Discharge Certificate, dated 21 September 1980

.a BNCOC Diploma, dated 6 February 1981

.a Certificate of Achievement, dated 19 January 1981

.the FSM's DD Form 214

.an individual Soldier's Report



4.On 8 March 1978, the FSM, at the age of 17, enlisted into the US Army Reserve(USAR) Delayed Entry Program (DEP) for a period of 6 years.  His service record wasvoid of a signed parental consent form. On 13 March 1978, the FSM was dischargedfrom the USAR DEP and entered active duty for a period of 3 years.

5.A portion of his DA Form 2-1 (Personnel Qualification Record) shows on 24 March1978 he entered basic training.  On 18 July 1978, he attended advanced individualtraining to qualify for the military occupational specialty of 19J (Tank Crewman).  Hisfirst unit of assignment was in Germany.

6.On 22 September 1980, the applicant reenlisted in the Army for a period of 4 years.

7.At some point, the FSM's commander preferred a charge(s) against the applicant;however, the complete charge sheet was not available for the Board's consideration.

8.On 9 August 1983, after consulting with counsel, the FSM voluntarily requesteddischarge in-lieu of trial by court-martial, under chapter 10 (Discharge in Lieu of Trial byCourt-Martial), Army Regulation (AR) 635-200 (Personnel Separations – EnlistedPersonnel).  In his request, he verified no one had subjected him to coercion, and thatcounsel had advised him of the implications of his request. He further acknowledged hewas guilty of one charge of absent without leave (AWOL).  He elected not to submit astatement on his own behalf.

9.An undated Disposition Form shows the FSM was pending a charge of AWOL from21 November 1982 to 3 August 1983. He had one previous nonjudicial punishment forAWOL. The FSM had consulted an attorney and understood the consequences of hisrequest for discharge. The FSM's pattern behavior indicated that retention was neitherpractical nor desirable. The FSM had no potential for rehabilitation. The FSM's chain ofcommand recommended approval of the requested discharge with an under other thanhonorable conditions discharge.

10.On 24 August 1983, the appropriate approval authority approved the FSM's requestfor discharge and directed his reduction to private/E-1 (PVT).

11.On 2 September 1983, the FSM was discharged accordingly. He had completed 4years, 9 months, and 23 days of active service this period. He had periods of lost timefrom 23 August 1982 to 1 September 1982 and 21 December 1982 to 3 August 1983.He was awarded or authorized the:

.Expert Marksmanship Qualification Badge (Pistol)

.Army Service Ribbon

.Overseas Service Ribbon

.Noncommissioned Officer Professional Development Ribbon (1)

.Army Achievement Medal

.Army Good Conduct Medal



12.The applicant states the FSM had a period of honorable service prior to hisreenlistment in the Army. He began to have issues, once he was transferred to Texas.He was ashamed of the type of discharge he received his whole life.

a.The applicant provides the FSM's death certificate, which shows the FSM died on25 October 2020. He completed BNCOC and had an honorable period of service from 14 March 1978 to 21 September 1980. 

b.During the applicant's era of service, Soldiers charged with UCMJ violations, forwhich a punitive discharge was among the maximum punishments, could request separation under chapter 10, Army Regulation 635-200; such requests were voluntary and offered in-lieu of trial by court-martial.  

c.The Manual for Courts-Martial then in effect stated the punishment for violationsof Article 86 (AWOL for 30 or more days) included a bad conduct discharge; when the AWOL period was terminated by an apprehension, a dishonorable discharge was authorized.   

d.In reaching its determination, the Board can consider the applicant's petition, theFMS's service record, and the applicant's statements in light of the published guidance on equity, injustice, or clemency. 

BOARD DISCUSSION: 

The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, the FSM's record of service, the frequency and nature of the FSM's misconduct, his request for discharge and the reason for separation. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct.  The applicant provided insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. After reviewing the application and all supporting documents, based on a preponderance of evidence, the Board determined that the FSM’s character of service was not in error or unjust. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

XX: XX: XX: 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. 

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 3 years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.

2.Army Regulation 635-200, in effect at the time, prescribed policies and procedures forthe administrative separation of enlisted personnel.

a.An honorable discharge was a separation with honor and entitled the recipient tobenefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 

b.A general discharge was a separation from the Army under honorable conditions,where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. 

c.Chapter 10 applied to Soldiers who had committed an offense or offenses forwhich the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. The Soldier was to be given a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 

3.The Manual for Courts-Martial, United States 1969 (Revised Edition), Table ofMaximum Punishments showed a dishonorable discharge was an available punishmentfor convictions of Article 86 (AWOL for more than 30 days), UCMJ.

4.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations. Clemency generally refers to relief specifically granted from a criminalsentence. 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. 
 
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