IN THE CASE OF: BOARD DATE: 7 January 2022 DOCKET NUMBER: AR20210014107 APPLICANT REQUESTS: The applicant requests, in effect, the reconsideration of his previous requests to upgrade his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Army Discharge Review Board) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Applicant's résumé, Licensed Minister Credential Identification Card, and applicant's business card * Five letters of support FACTS: 1. Incorporated herein by reference are military records, as were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR201000, on 21 December 2010, and AR201800, on 11 April 2019. 2. The applicant states they forced him to make a decision, and then told him, after 6 months, his discharge would change to general under honorable conditions. The applicant argues his separation was unfair because nothing dangerous occurred. The applicant offers additional details in a self-authored statement: a. The applicant affirms he enlisted into the Army at 17; his mother had died in a car accident when he was 13 and, at the time, he had two younger siblings (a brother and sister), as well as six older brothers and sisters. His father lived with them when the applicant's mother died, but "it was like he checked out" because, although he continued to work, his father no longer functioned as a parent; bills went unpaid, his father was often gone, and the applicant and his siblings went hungry on many occasions. The applicant's elder siblings were all grown up and out of the household; no one realized how crucial their mother was to their wellbeing until she was gone. b. The family reached a point where the utility companies turned off the electricity, water, and gas. Fortunately, the home in which the family lived was paid for, and they started getting SSI (Supplemental Security Income from the Social Security Administration) due to their mother's death; it was enough to pay for the electricity, and, with power restored, they were able to stay in one room with a space heater. They also had access to a well, from which they had to draw out 5-gallon pails of water in order to bathe and cook. With all that was going on, and the absence of any viable means of employment, the applicant knew he had to do something in order to complete school and earn an income; he decided to join the Army. Referring to his military service, the applicant remarks, "I never had a childhood, (but) I was so (proud) of being a part of something that was so important to me." c. The applicant states he began his Army career in Germany, along the east-west border; he gave the Army his best effort and his leadership quickly promoted him. He enjoyed his work during his first three years, and he did not get into any trouble; he loved the Army. He reenlisted and requested reassignment to Fort Knox, KY so he could be closer to his family; however, it soon became apparent that being closer was not ideal. On his visits home, he realized how much he appreciated getting a level of respect he had never received while growing up, and he found he did not want to leave; he ended up becoming absent without leave (AWOL), and, at that point, he felt scared and thought he could never return to his unit. d. When they brought him back to Fort Knox, he felt so sorry for what he had done; he had let down himself, his family, and the Army. Even though he wanted so much to start over, and he believed he could still function as a Soldier, his captain told him, for the good of the Army, it would be best if the applicant left. The captain also claimed the applicant's discharge would "turn into a general discharge in 6 months" if the applicant did not get into any trouble, and the applicant contends he complied with his commander's statement. e. The applicant declares he is very sorry for his actions; he never wanted to leave the Army permanently, he just wanted his family and hometown to accept him. Since his separation from the military, the applicant has turned his life around; he has been married for 30 years and has 18 grandchildren, 4 stepchildren, and 1 son. He states his greatest accomplishment is becoming a minister, and he has learned how to become committed to something you love. 3. The applicant submits his DD Form 214, along with his résumé, a Credential Identification Card showing he is a Licensed Minister, and a copy of his business card. He additionally offers five letters of support, in which the writers laud the applicant as a dedicated and faithful minister, a loving family man, a compassionate coworker, and a hardworking, capable employee. 4. The applicant's service records show: a. On 28 August 1986, the applicant enlisted into the Regular Army for 3 years; he was 17 years old. Upon completion of initial entry training and the award of military occupational specialty 13B (Cannon Crewmember), orders transferred him to Germany, and he arrived at his unit, on or about 7 January 1987. Effective 28 October 1988, the applicant's leadership promoted him to specialist (SPC)/E-4. b. On 30 January 1989, while still assigned in Germany, the applicant immediately reenlisted for 3 years; as part of his enlistment, he requested reassignment to Fort Knox. On 28 March 1989, the applicant completed his tour in Germany, and orders reassigned him to Fort Knox; he arrived at his Fort Knox unit, on 15 May 1989. c. On 14 August 1989, the applicant accepted nonjudicial punishment, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana; punishment included reduction from SPC to private (PV2)/E-2. d. On 6 September 1989, the applicant Fort Knox unit reported him as AWOL and, on 6 October 1989, dropped him from unit rolls. On 1 December 1989, according to the unit's DA Form 4187 (Personnel Action), the applicant surrendered himself to the military police and his unit. The unit immediately placed the applicant in confinement. e. On 1 December 1989, the applicant's chain of command preferred court-martial charges against him for AWOL, from 6 September until 1 December 1989. On 4 December 1989, the command preferred additional charges, for failing to report for charge of quarters, on 3 September 1989, and breaking restriction, on 3 September 1989. f. On 7 December 1989, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and counsel had advised him of the implications of his request; he also acknowledged he was guilty of the charge and elected not to submit statements in his own behalf. g. On 15 December 1989, the separation authority approved the applicant's separation request and directed his under other than honorable conditions discharge; in addition, the separation authority ordered the applicant's reduction to private (PV1)/E-1. On 21 December 1989, orders discharged the applicant accordingly. h. The applicant's DD Form 214 shows he completed 3 years and 29 days in net, creditable active duty service, of which he served 10 months and 22 days on his reenlistment contract. The report additionally reflected the applicant lost time, from 19890906 through 19891130, and listed the awards of Army Service Ribbon, Overseas Service Ribbon, and two marksmanship qualification badges. Although the remarks section displayed the dates of his immediate reenlistment, it did not include his term of continuous honorable service, from 19860818 through 19890129. i. On 10 June 2010, the applicant petitioned the ABCMR, requesting an upgraded character of service. (1) The applicant contended he really wanted to remain in the Army, but he was young and homesick, and he was in love with his high school sweetheart; he maintained he had just made a mistake. The applicant additionally affirmed he enjoyed being in the Army; he only left because his first sergeant and battery commander said it was for the best. (2) On 21 December 2010, after considering the applicant's arguments and reviewing the applicant's service record, the Board voted to deny relief; the Board indicated the applicant's contentions were not sufficiently mitigating. j. On 4 October 2018, the applicant filed a request for reconsideration, arguing he was only 17 when the Army sent him to protect the border in Germany, and he maintained he had been a good Soldier who the Army allowed to reenlist. He felt his chain of command did not give him a chance after he went AWOL; now, as he was older, he regretted his actions and that he never got the chance to correct what he had done. On 11 April 2019, the Army Review Boards Agency (ARBA) administratively closed the applicant's request; ARBA cited regulatory guidance, which requires applicants to submit new evidence with any requests for reconsideration. After reviewing the applicant's first application and evaluating his current request, ARBA found the applicant had not submitted anything not already considered by the Board. 5. The applicant asks the Board to upgrade his character of service, arguing they forced him to make a decision, and then told him, after 6 months, his discharge would change to general under honorable conditions. The applicant argues his separation was unfair because nothing dangerous occurred. a. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was among the maximum punishments, could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in- lieu of trial by court-martial. The Manual for Courts-Martial then in effect stated the punishment for violations of Article 86 (AWOL for 30 or more days) included a punitive discharge. b. The Army has never had a policy of automatically upgrading character of service. For consideration of an upgrade, applicants must submit applications, within statutory time limits, to the Army Discharge Review Board or the ABCMR. c. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The applicant provided letters of support and evidence of post-service achievements. Based upon a preponderance of evidence, his prior honorable service, and guidance for consideration of discharge upgrade requests, the Board determined that the character of service the applicant received upon separation should be corrected as a matter of clemency. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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 amendment of the ABCMR's decision in Docket Number AR20100017264, on 21 December 2010, and AR20180015773, on 11 April 2019. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 for the period ending 21 December 1989 showing the character of service as under honorable conditions (General). 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. ADMINISTRATIVE NOTE(S): 1. AR 635-8 (Separation Processing and Documents), currently in effect, states for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” enter "CONTINUOUS HONORABLE SERVICE FROM" (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. The applicant's DD Form 214 does not reflect his continuous honorable service, completed prior to his immediate reenlistment, on 30 January 1989. 2. As a result, amend the applicant's DD Form 214, ending 21 December 1989, by adding the following comment to item 18: "CONTINUOUS HONORABLE SERVICE FROM 19860818 TO 19890129." REFERENCES: 1. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities issued a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which 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 have 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. 2. The Manual for Courts-Martial, United States 1984, in effect at the time showed a punitive discharge was an available punishment for convictions of Article 86 (AWOL for more than 30 days), UCMJ. 3. AR 600-200 (Enlisted Personnel Management), in effect at the time, prescribed policies and procedures for the personnel management of enlisted Soldiers. Paragraph 6-11 (Approved for Discharge from Service under Other than Honorable Conditions) stated, when a general court-martial authority (GCMCA) decided to discharge a Soldier under other than honorable conditions, the GCMCA would concurrently order the reduction of the Soldier to the lowest enlisted grade. Board action was not required for this reduction. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014107 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1