IN THE CASE OF: BOARD DATE: 29 November 2021 DOCKET NUMBER: AR20210011623 APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge to honorable. 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 (Armed Forces), 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 the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, he completed his initial three year commitment and served honorably with citations. He joined the Army when he was 17 years old and reenlisted because he was pressured to do so. He's proud of his service as a young man and wants an upgrade. He has no evidence to present. He is merely requesting leniency due to his good service and lack of adequate counsel at the time of discharge. 3. On 17 June 1982, the applicant, at the age of 17 years old, enlisted in the US Army Reserve (USAR) delayed entry program (DEP) for a period of 6 years. There is no evidence of a parental waiver for his joining prior to 18 years of age. On 29 July 1982, he was discharged from the USAR DEP and entered active duty for a period of 3 years. His DA Form 2-1 (Personnel Qualification Record) shows he entered basic training on 2 August 1982 and advanced individual training (AIT) for the military occupational specialty (MOS) of 71M (Chapel Activities Specialist) on 25 September 1982. 4. On 22 March 1984, orders were published promoting the applicant to Specialist Four. 5. On 1 July 1985, the applicant reenlisted in the Army for a period of 5 years. 6. On 10 July 1985, permanent orders were published awarding the applicant the Army Good Conduct Medal for his service from 20 July 1982 to 19 July 1985. 7. On 26 August 1985, permanent orders were published awarding the applicant an impact Army Achievement Medal for exceptional service from 1 April 1985 to 30 June 1985. 8. On 3 October 1985, permanent orders were published awarding the applicant an Army Commendation Medal for meritorious service from 5 January 1983 to 22 November 1985. 9. On 2 December 1985, his duty status was changed from present for duty (PDY) to absent without leave (AWOL). On 31 December 1985, his duty status was changed from AWOL to dropped from rolls (DFR). On 14 January 1986, his duty status was changed from DFR to PDY, he had surrendered to military authorities at Fort Knox, Kentucky. 10. On 14 January 1986, the applicant completed a form entitled Medical Examination for Separation which shows he did not desire a separation medical examination. 11. On 16 January 1986, the applicant completed a statement subject Admission of AWOL for Administrative Purpose wherein the applicant admitted he had been AWOL from 2 December 1985 to 14 January 1986. 12. On 16 January 1986, the commander of Special Processing Company, US Army Personnel Control Facility, Fort Knox, preferred on charge of AWOL from on or about 2 December 1985 to on or about 14 January 1986. 13. On 17 January 1986, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, in-lieu of trial by court-martial, under chapter 10 (Discharge for the Good of the Service), Army Regulation 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 further acknowledged he was guilty of the charge. He elected not to submit a statement on his own behalf. 14. The applicant's chain of command recommended approval of the applicant's request for discharge with an under other than honorable discharge. On 4 February 1986, the appropriate approval authority approved the applicant's request for discharge, directed he be reduced to the rank of Private/E1, and directed an under other than honorable conditions characterization of discharge. 15. On 28 February 1986, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had an immediate reenlistment on 1 July 1985. He had completed 3 year, 5 months, and 27 days of service. He had lost time from 2 December 1985 to 13 January 1986. He was awarded or authorized the: * Sharpshooter Marksmanship Badge (M-16 Rifle) * Expert Marksmanship Badge (Grenade) * Army Service Ribbon * Army Achievement Medal * Army Good Conduct Medal * Army Commendation Medal 16. The applicant states he completed his initial three year commitment and served honorably with citations. He was requesting leniency due to his good service and lack of adequate counsel at the time of his discharge. a. The applicant service records show he was counseled by a defense attorney at the time he requested discharge from the Army. b. Soldiers charged with Uniform Code of Military Justice (UCMJ) violations, for which a punitive discharge was available as a punishment, could request separation under chapter 10, Army Regulation 635-200. Such requests were voluntary and submitted in-lieu of trial by court-martial. On approval, separation authorities normally issued an under other than honorable conditions character of service, but an honorable or general discharge could be awarded, when warranted. c. The Manual for Courts-Martial maximum punishment table shows AWOL for more than 30 days included a punitive discharge as part of its maximum punishment. d. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for liberal consideration of discharge upgrade requests. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board considered the applicant's statement, record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. Based on the preponderance of evidence, and in the absence of any mitigating factors such as post service accomplishments or letters of reference, the Board found that found that the character of service the applicant received upon separation was not in error or unjust. 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): N/A REFERENCES: 1. Title 10, USC, 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, prescribed policies and procedures for enlisted administrative separations. a. 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. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. c. 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 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial (MCM), United States 1984, included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Commanders were to ensure the request for discharge was a personal decision, free of coercion, and that the Soldier was given a reasonable amount of time to consult with counsel. Once the Soldier made the decision to request discharge, he/she had to put it in writing and counsel was required to sign as a witness. Once approved, an under other than honorable conditions character of service was normally furnished, but the separation authority could direct either an honorable or general discharge, when warranted. 4. The Manual for Courts-Martial maximum punishment table shows AWOL for more than 30 days included a punitive discharge as part of its maximum punishment. 5. 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) AR20210011623 1 ARMY BOARD OF CORRECTIONS FOR MILITARY RECORDS RECORD OF PROCEEDINGS 1