IN THE CASE OF: BOARD DATE: 6 October 2021 DOCKET NUMBER: AR20210010687 APPLICANT REQUESTS: * In effect, reconsideration of his earlier request to upgrade his under other than honorable conditions discharge to honorable * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Birth Certificate * Physician's letter 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 2. The applicant states, when his parents adopted him, his mother was 50 and his father was 60; by the time he joined the military, they were 68 and 78. The applicant's mother died while he was in basic combat training (BCT), but he did not find out until he went home on leave after graduation; he also learned, when his mother passed, his father had a stroke and there was no one there to help. As a result, he decided to stay when his leave ended so he could help his father. The applicant later turned himself in at and spent the next 28 days awaiting a separation decision. The Army promised to upgrade his character of service after 6 months. The applicant notes he has tried in the past to get an upgrade, but he did not understand the process for making a request. After his stroke, in May 2020, he was able to find someone to help him complete this application; he requires this upgrade so he can obtain healthcare benefits from the Department of Veterans Affairs. 3. The applicant's service records show: a. On 10 July 1979, the applicant enlisted into the Regular Army for 3 years; he was 18 years old. Orders transferred him to Fort Knox, KY for one-unit-station-training (OSUT) in military occupational specialty 19E (Armor Crewman), and he arrived for training on 27 July 1979. b. On 1 September 1979, the applicant's OSUT leadership reported him as absent without leave (AWOL) and dropped him from unit rolls, effective 30 September 1979. On 5 December 1979, the applicant surrendered himself to military authority, at Fort Dix, and orders reassigned him to the U.S. Army Personnel Control Facility (PCF) at Fort Dix. c. On 10 January 1980, the PCF preferred court-martial charges against the applicant for having been AWOL from 1 September until 5 December 1979 (58 days). On 11 January 1980, the applicant's PCF commander interviewed the applicant, and the applicant said he returned from AWOL because he was tired of looking over his shoulder; in addition, he disclosed his two reasons for going AWOL: * The applicant had had a knee operation before entering the Army, and the knee became sore during unit runs; military doctors gave him a profile, but the applicant felt he could not Soldier with a "messed up knee" * The applicant had gone home on a pass, and he discovered his father could not care for himself, so the applicant decided to stay d. On or about 11 January 1980, 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 written request, the applicant affirmed no one had subjected him to coercion and counsel had explained the implications of the applicant's request; the applicant further acknowledged he was guilty of the charge, and he elected not to submit statements in his own behalf. Subsequent to submitting his separation request, the applicant departed Fort Dix on excess leave. e. At some point prior to 25 January 1980, a personnel clerk entered the applicant's absence in item 21 (Time Lost (Sec 972, Title 10, USC)) of the applicant's DA Form 2-1 (Personnel Qualification Record – Part II); the clerk listed the dates as "790901 thru 791205" and stated the number of days absent as "94." On 25 January 1980, the applicant's PCF commander endorsed the applicant's separation request, recommending approval for an under other than honorable conditions character of service. In the data provided to the separation authority, the commander did not mention of the applicant's reasons for AWOL (i.e. the father's health) and listed the total days of "bad time" as 95. f. On 5 February 1980, the separation authority approved the applicant's separation request and directed his under other than honorable conditions discharge; in addition, he ordered the applicant's reduction to the lowest enlisted grade. On 21 February 1980, orders discharged the applicant accordingly. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 months and 7 days of his 3-year enlistment contract, with lost time from 19790901 to 19791205. The form lists no awards or decorations. g. On 20 March 1981, the applicant petitioned the Army Discharge Review Board (ADRB), on a DD Form 293 (Application for the ADRB), and requested an upgrade to honorable. (1) The applicant stated his parents had adopted him; his father was 80 years old and his mother was 76. His mother suffered a stroke and had been in bad health for about 6 years; then, right after the applicant entered active duty, the applicant's father also had a stroke, and, as a result, his father was unable to care for the applicant's mother. The applicant had gone home on a 3-day pass for "Family Day," and, while there, he realized his parents needed him, so he decided to stay. After turning himself in, the Army gave the applicant an under other than honorable conditions discharge; the applicant needed this upgrade because he wanted to reenter the Army. The applicant noted his aunt was now caring for his parents, so he felt he could be a good Soldier and serve honorably. (2) On 3 November 1981, the ADRB denied the applicant's request. h. On 28 April 2009, the applicant applied to the ABCMR for relief. (1) The applicant stated he had gone AWOL because his father was sick; when he returned to the Army, he could have either gone back on active duty or been discharged, but, at the time, no one fully explained those options. Additionally, they said if he stayed out of trouble for a year, the Army would immediately upgrade his discharge; had he known this would not happen, he would never have accepted a discharge. The applicant affirmed he had submitted the current application so he could obtain healthcare. (2) On 6 October 2009, the Board decided to deny the applicant's request after evaluating his contentions and reviewing the service record. The Board pointed out the Army never had a policy of automatically upgrading characters of service. In addition, the Board took into consideration the health of the applicant's father, but determined the circumstances were not sufficiently mitigating to warrant an upgrade. i. On 18 January 2012, the applicant submitted a DD Forms 149 and 293, requesting, in effect, the Board to reconsider his previous upgrade request. The applicant reiterated earlier contentions, maintaining he had gone home on leave, discovered his father was sick, and realized his father was unable to care for the applicant's mother, following her stroke. The applicant additionally claimed he discovered his aunt was stealing money from his parents. The applicant declared he needed this upgrade because he had children to care for, and he required access to medical care. On 28 February 2012, the Army Review Boards Agency (ARBA) administratively closed the applicant's request. ARBA advised the applicant that, per AR 15-185, applicants could request reconsideration within 1 year of the Board's original decision; the applicant's request had arrived after the 1-year deadline. 4. AR 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. 5. The applicant requests the Board reconsider its previous decision; he states his mother died while he was in BCT, and he did not find out until he went home on leave; once home, he learned his father had had a stroke and there was no one there to help, so he decided to stay. After his return to military control, the Army discharged him, but promised him an upgrade after 6 months. a. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. The Manual for Courts-Martial, then in effect, showed a punitive discharge was one of the available maximum punishments for violations of Article 86 (AWOL for More than 30 Days). b. The Army has never had a policy of automatically upgrading character of service. For consideration of an upgrade, applicants are required to submit applications, within statutory time limits, to the Army Discharge Review Board or the ABCMR. c. The ABCMR is not authorized to grant requests for upgraded characters of service solely to make the applicant eligible for Veterans' benefits; however, 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. The applicant's request for a personal appearance 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 before the Board 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 determined that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published Department of Defense guidance for liberal consideration when reviewing discharge upgrade requests. The Board noted the offenses leading to the applicant’s separation and the absence of evidence attesting to post-service achievements or letters of reference to weigh in support of a clemency determination. Based on the preponderance of the evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions, and applied to those 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. Commanders were to provide the Soldier a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was then 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. Paragraph 10-8 (Discharge Certificate Issued) stated commander normally were to issue an under other than honorable conditions character of service to Soldiers voluntarily requesting discharge under chapter 10; however, the regulation gave separation authorities the authority to direct a general discharge under honorable conditions, when merited. 2. The Manual for Courts-Martial, then in effect, showed a punitive discharge was one of the available maximum punishments for violations of Article 86 (AWOL for More than 30 Days). 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 the 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, and the regulation did not specify how separation authority was to notify the Soldier. 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. 5. AR 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010687 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1