IN THE CASE OF: BOARD DATE: 2 March 2022 DOCKET NUMBER: AR20210014378 APPLICANT REQUESTS: * upgrade his under other than honorable conditions discharge to under honorable conditions (general) or honorable * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Letters of Support * Document regarding an Accident * Certificates of Completion * Certificates of Participation * High School Equivalency Certificate * Certificate of Baptism * Certificates of Achievement * Award Certificate FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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, at the time of his discharge, he was having quite a few issues with his life and since that time he's become a productive member of society. 3. The applicant's self-authored letter states, in effect: a. He was born in. He grew up in until he was about 12 or 14 years old, around the time of the riots. He and his family lived in the middle of it all. During that time, you had to learn fast to be tough and defend yourself or get beat up or even killed. b. His mother and father were very poor living on welfare and Supplemental Security Income (SSI). They lived in a small house with his two brothers and sister. His youngest brother was mentally retarded and had cerebral palsy. It took a lot of extra care for his brother. c. His mother was always sick with heart issues and weight problems. His father was an alcoholic who drank everyday and fought and argued with his mom. He mistreated the kids and at the age of 12, the applicant was molested by his father. He was afraid to say anything and ashamed about what happened. His life went on like nothing happened. It wasn't until he was about 16 or 17 years old that he found out his sister had been raped by his father. His sister and he shared their stories and have been very close since. d. When his sister was about 16 or 17 years old, she ran off and got married in. By that time, his older brother was gone and the last the applicant knew, he was in. e. A friend of the family had convinced them to move from. He knew someone in that would help them. He gave them his car because they didn't have one. They were promised a four-bedroom home for as little as $350 per month. So off they went. f. When they got there, the house was big but it was a mess. It didn't have a floor and it needed a roof. It was being used for a pigs and a horse. The owner said that's all he had available at the time but he had a house in another town. He was waiting on papers to go through so in the meantime it they wanted to fix up the pig pen, they could stay there rent free until the other house was ready. That's what they did because they had no where else to go. g. They fixed up the house and stayed there for almost one and a half years. The applicant went to school there and his classmates made fun of him. They called him names like pig pen and barn boy. One time his father sent him to school without shoes. He was so embarrassed and the kids were teasing and laughing at him. His father was always tell him that he was a loser and "wouldn't mount to anything." h. Even to today, he has nightmares about his father trying to have sex with him, beating him, kids laughing at him, and kids calling him names. i. He always said to himself someday he was going to show everybody. He was going to be somebody. When the opportunity came for him to join the Army, he jumped at the chance and he really enjoyed being in the Army. j. He finished basic training and was waiting for order. He remembers family day, all the family members went to see their sons, daughters, husbands, and wives. He starred out the window wishing he had a family to go and see him and to be proud of him and tears came to his eyes. After all of that, he needed to man up. k. He got together with a group of Soldiers at the base and went through what they called a test to see if he could take some of the torture that would be inflicted on him. Two of the Soldiers held his hands down and took a cigar and burnt his hands to see if he could take the pain. The applicant passed their test. A few days later, he wound up in the hospital with both hands infected. He stayed in the hospital for about a week and he missed out on some training but was fine after a few weeks. He still has the scars from the burns. l. One day, he received a letter from his sister telling him one of his best friends passed away. He asked his staff sergeant (SSG) if it was possible for him to go to the funeral. He thinks the SSG gave him leave for 15 days. When the applicant got home, he found his father drunk and his mother was sick and worried about all the bills they had fallen behind on. They were facing eviction. He gave his mother what money he had. It was enough to pay the rent, light, and gas bills. He told his mother once he got back to base he would send her some more money from time-to-time. In the mean time he found a few odd jobs around the neighborhood like mowing yards, fixing cars, and cleaning up. m. His mother's health was getting any better. Taking care of his little brother was taking a toll on her. He did what he could to help take care of him but he just didn't know what to do. The applicant would have to go and get his father away from his drinking buddies because he was so drunk he couldn't drive home and was the only one who had a car. The applicant's mother was sick and his little brother needed to go to the doctor. A few days later someone from the welfare office went to their house to check on his brother and mother. They saw his mother wasn't able to take care of his brother anymore so they placed him in a care home. By this time, the applicant was already late going back to the base and was declared absent without leave (AWOL). He just couldn't leave his mother in that condition. He was scared of what was going to happen. n. The damage was done and there wasn't anything he could do about it then, he thought, so he continued to work his odd jobs to help his mother pay bills and chasing his father down to take him home when he was drunk. His father got mad at him once and said it was the applicant's fault that welfare took his brother away. The applicant always wondered, since his sister was raped and he was molested by his father, what about his little brother? His brother couldn't talk or do anything for that matter, how many times did he get raped by his father? The applicant finally told his mother about what had happened to him. She just shrugged it off like it was nothing. After a few months went by, the applicant just gave up. The military police (MP) went and got him and took him to Fort Ord, California where he was placed in confined quarters. About 10 or 15 Soldiers were taken to a room where three or four military staff handed them a bunch of papers to sign. Some were to stay in the service and some were to get out. While the Soldiers were screaming at them, the applicant was trying to read the papers because he wanted to stay and face his punishment and stay in the Army. o. At that time, one of the Soldiers approached the applicant and told him (screaming at him) and told him to sign the papers not to read them. The Soldier didn't have time for the applicant to read the paperwork. Unknowing what the applicant was signing, he signed the papers, which resulted in him signing away everything, any savings bonds he had were gone, all his rights were gone. He was then told he was never to mention that he was in the service every. He was then placed back in confinement until he was released from the Army. p. He really regrets signing those papers. If he had only known what he was signing. When he was released from the Army, he was handed a bus pass, which was one way of his choice. He chose to go where his sister was in. The applicant began thinking his father was right. He was a worthless, good for nothing, and would never amount to anything. It hurt him so bad. He couldn't find work. He tried everything he could think of. He finally got a job with a temp service working all different jobs part time. q. He went back home to his parents; house and did what he could to help his mother. He felt so useless and started to drink and got involved with drugs, a quick way to make money. He now had money and was able to take care of his mother. He did that for about a year or two. He was drinking very badly and started to turn into his father. He didn't like it at all and finally got caught in 1995 and went to prison, which was the best thing that ever happened to him. r. He cut a deal with the District Attorney for seven years with a possibility of serving three and a half years for good time. He had work time and went to a level three yard and within a few months, he was in a level one yard with good behavior and time served. He started working at the warehouse for a while, he got transferred to the clinic as a janitor but soon had to get out of there because the other inmates wanted him to steal drugs from the clinic. He got another job transfer to the state garage where he worked on the state vehicles and he served as the clerk. He handled all the paperwork and work orders. s. He stayed at the garage for some time until he heard of an opening at the fire house. He put in for a job transfer. It took about a month before he got into the new job and he loved it. He went in as a firefighter and left as an engineer with is certificates as firefighter 1, firefighter 2, and engineer. He was doing really well. He got his life together and felt like somebody again. When he got out of prison after three and a half years, he continued to do well. By that time, his mother and father had passed away. When he got out of jail, he went back to school and received his General Education Degree but he wasn't happy with that so he continued to go to school and took some college courses and got his diploma and was happy. He did what he had set out to do. t. There was one thing that still bothered him, his discharge from the Army. He wanted to correct it. He tried to reenlist in the National Guard and talked to a sergeant. He took the sergeant (SGT) all of his paperwork to the SGT and the SGT said he would see what he could do to assist the applicant and would contact him within a month or two. he never heard from the SGT again. When he went back to the recruiting office, nobody knew anything about his paperwork or who spoke to him, so he just gave up. u. He's been doing well every since. He has a good job as a truck driver and hasn't touched alcohol or drugs to this day. He's been driving truck for over 15 years. He's had jobs going to or from military bases, but was denied access due to his record. He really regrets signing the paperwork that he wasn't able to read prior to signing them. He misses the Army and feels he would have been a great Soldier and could have made a career out of the Army. He asks the Board to consider his request and to upgrade his discharge. 4. The applicant provides the following documents for the Board's consideration: a. A letter of support from a friend who has known the applicant for over 20 years. The applicant is an outstanding guy who always does what he says he's going to do. He is a hard worker and not a freeloader. To get what he needs, he will do odd jobs and he would give you the shirt off his back. The author does not have one bad word to say about the applicant. The applicant has been a great friend and the author is glad he got to know him. b. A letter from a dispatcher who has known the applicant for over 10 years. They have worked together on a daily basis off an on at two different transportation company. She is a dispatcher and the applicant is an interstate driver. The applicant always proved to be a good and decent citizen with good moral character. She has never had an issue with the applicant. She regards him as a friend and not just a coworker. c. A letter from firemen, which states it had been a privilege to work with the applicant, during the year of 1998 and 1999. The found him to be diligent in his training as a firefighter/first responder. He feels the applicant would be a positive attribute to any organization. During his time at the station, he displayed exceptional learning ability and showed leadership qualities as well as a capability to follow orders without supervision. The applicant showed great capabilities in cross training in the areas such as engineer, mechanic, clerk, groundkeeper, and maintenance. The authors felt the applicant would make an excellent team member. d. A document, which states on 21 October 1998, at approximately 1630, an accident involving two vehicles occurred at the entrance Prison. The fire department was the first emergent unit to respond to the scene of the accident. The accident was such that two minor children were trapped in one of the vehicles. Both children suffered major injuries and were subsequently air lifted from the accident scene, to the nearest trauma facility. The applicant, as an inmate, conducted himself in a highly trained and professional manner and was to be commended for his swift action in helping extract the children from the vehicle and providing emergency aid. e. Certificates of completion, as follows: * Doing Time with Jesus * Born to Win * Guide to Christian Growth * The Way to Happiness Extension Course f. Certificates of participation, as follows: * Christian Basics Seminar * Blood Borne Pathogen and Infection Control Training Silent War Infection Control for Emergency Responders * Alcoholics Anonymous 1996 and 1996 through 1997 g. His High School Equivalency Certificate. f. His Certificate of Baptism. g. Certificates of Achievement, as follows: * Tier 1 Subject Reading * Radiological Emergency Management * Emergency Preparedness * Building for the Earthquakes of Tomorrow * A Citizen's Guide to Disaster Assistance * SEMS Introductory Course * Hazardous Materials: A Citizen's Orientation h. A Green Cross Award for performing a successful rescue with the JAWS of Life. 5. On 13 April 1976, the applicant enlisted into the US Army Reserve (USAR) delayed entry program (DEP), at the age of 18 years old, for a period of six years. On 19 April 1976, 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 the applicant entered Basic Armor Training on 29 April 1976. 6. On 3 June 1976, the applicant's duty status was changed from present for duty (PDY) to hospital. On 7 June 1976, his duty status was changed from hospital to PDY. 7. On 29 July 1976, the applicant's duty status was changed from PDY to AWOL. On 10 August 1976, his duty status was changed from AWOL to PDY. 8. On 13 August 1976, the applicant accepted nonjudicial punishment (NJP) for being AWOL from on or about 28 July 1976 to on or about 10 August 1976. His punishment included reduction to Private/E-1 (PVT), forfeiture of $84 suspended, and extra duty for 7 days. There was no indication if he appealed his punishment. 9. On 6 September 1976, a Report for Suspension of Favorable Personnel Action (Flag) was completed. The flag indicates the applicant was dropped from rolls (DFR) effective 6 October 1976. 10. On 6 September 1976, his duty status was changed from PDY to AWOL. 11. A Commander's Report of Inquiry/Unauthorized Absence shows the applicant had the intent not to return and his next of kin was sent a 10-day AWOL letter. 12. On 6 October 1976, his duty status was changed from AWOL to DRF. On the same day, the applicant's commander preferred a charge of AWOL against the applicant; however, it did not have an end date of the AWOL. 13. On 15 October 1976, the applicant's commander completed a statement, which states after a thorough search was conducted it was determined the applicant, then under DRF status, took all of his belongings, both military and civilian upon his departure from the unit. No inventories were necessary and no equipment was recovered. 14. On 3 December 1976, the applicant's commander made an additional statement, which states he certified that personnel actions were made documenting the date and hour of the applicant's absence (6 September 1976) and date of desertion (6 October 1976). 15. On 14 March 1977, the applicant's duty status was changed from DFR to PDY. The applicant had surrendered to military authorities in Fort Ord, California. 16. On 14 March 1977, the commander of US Army Personnel Control Facility, Fort Ord, California preferred a charge of AWOL against the applicant for being AWOL from on or about 6 September 1976 to on or about 14 March 1977. 17. On 14 March 1977, the applicant's defense counsel completed a Statement of Counseling, which includes the information the defense counsel gave the applicant pending his request for discharge in lieu of discharge. 18. On 17 March 1977, after consulting with counsel, the applicant voluntarily requested separation for the good of the service, and in lieu of trial by court-martial, per chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). e In his request, the applicant affirmed no one had subjected him to coercion, and that his counsel had advised him of the implications of a separation under the provisions of chapter 10, Army Regulation 635-200; in addition, the applicant acknowledged he was guilty of the charge. The applicant elected to submit a statement in his own behalf, which states, in effect, he was requesting discharge for the good of the service. He entered the service because of police harassment. He went AWOL because his parents were splitting up because of his father's drinking problems. His feelings toward the Army were it was not for him but he had no bad feelings. He wanted out of the Army because he had too much at stake in his civilian life. If he were returned to duty, he would go crazy. He understood he would lose all of the benefits including a headstone marker, loans, and burial flag. He understood what a discharge under other than honorable conditions was and accepted it. 19. On 17 March 1977, the applicant completed a Request and Authorization for Leave showing he was requesting excess leave from 18 March 1977 for an indefinite period of time. 20. On 18 March 1977, a Disposition Form was completed and shows the applicant underwent a separation physical on 15 March 1977. The physical documentation was not available for the Board's review. 21. Sometime in March 1977, the applicant underwent a Report of Mental Status Evaluation, which shows the applicant had no significant mental illness and had the mental capacity to understand and participate in proceedings. 22. The applicant's chain of command recommended approval of the applicant's request and on 31 March 1977 the appropriate approval authority approved the applicant's request for discharge. 23. On 11 April 1977, the applicant was discharged accordingly. His DD Form 214 (Report of Separation from Active Duty) shows he had completed 5 months and 14 days of active service this period. He had 189 days lost from 6 September 1976 through 13 March 1977. He was not authorized or awarded any awards or decorations. 24. On 31 March 1979, the applicant received a letter from the Army Discharge Review Board (ADRB), which states after careful consideration of his military records and all other available evidence, the ADRB determined the applicant was properly discharged and denied his request for an upgraded discharge. 25. The applicant states at the time of his discharge he was having a few issues with his life. His best friend had died and he went home for the funeral. Upon arriving home, his father was drunk, his mother was having health issues, and his little brother, who had a learning disability, was taken from the home. He states when he returned to military control, he was handed paperwork and told to sign it without reading it. He did not know what he was signing prior to his discharge. He states he has been a contributing member of society. a. The applicant provides certificates of completion of training, certificates of appreciation, and letters of support. b. The applicant's service records contain his request for discharge which includes a self-written letter stating he wanted to be discharged from the Army as well as a statement of counseling from his defense counsel, which explains the information he provided to the applicant prior to the applicant requesting discharge in lieu of trial by court-martial. c. Army Regulation 635-200, Soldiers charged with Uniform Code of Military Justice violations, for which a punitive discharge was a punishment, could voluntarily request separation in-lieu of trial by court-martial. According to the Manual for Courts-Martial that was in effect at the time, the maximum punishment for disobeying a lawful order included a punitive discharge. d. The Manual for Courts-Martial, in effective at the time, showed a punitive discharge was among the maximum punishments for AWOL over 30 days. e. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. f. 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, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. The Board found the post service accomplishments and character letters of support and his community service noteworthy. However, upon review of the applicant’s petition and available military records the Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 5 months and 14 days of net service for this period Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 2. The applicant’s request for a personal appearance hearing 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 hearing is not necessary to serve the interest of equity and justice in this case. 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, U.S. 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 Army Board for Correction of Military Records (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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. An honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court- martial, and no more than one special court-martial conviction. 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 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, United States 1969 (Revised Edition), 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. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 4. The Manual for Courts-Martial, Table of Maximum Punishments showed a punitive discharge was a punishment allowed for AWOL over 30 days. 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) AR20210014378 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1