IN THE CASE OF: BOARD DATE: 13 July 2022 DOCKET NUMBER: AR20210014782 APPLICANT’S REQUEST: The applicant requests the upgrade of his under other than honorable conditions to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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, his discharge was unjust because his chain of command did not treat him the same as other Soldiers; he had served honorably for 3 years and deserves compensation. The applicant acknowledges that he was upset when he went absent without leave (AWOL); this followed an altercation with a fellow Soldier, and, although the applicant's leadership punished him with an article 15, they protected the other Soldier from harsh punishments because he was a unit favorite. This all occurred during the applicant's second enlistment, and after the confrontation and the NJP, the applicant lost his E-4 rank/grade, the NJP imposing official's forfeiture greatly affected him financially, and his leadership began processing him for separation. The foregoing events caused him to suffer both mentally and physically and contributed to his subsequent homeless status; he currently lives in a homeless facility for Veterans, and he prays that the Board will grant his upgrade request so that he can transition to his own place and become eligible for VA benefits. 3. The applicant's service records show: a. On 9 June 1978, the applicant enlisted into the Regular Army for 3 years; he was 18 years old. Following the completion of initial entry training and the award of military occupational specialty 11B (Infantryman), orders assigned him to Korea, and he arrived at his unit, on 9 October 1978. b. At some point prior to April 1979, the applicant's leadership promoted him to private first class (PFC)/E-3. On 27 April 1979, he accepted nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for failing to report to his place of duty on time. The punishment included a suspended reduction to private (PV2)/E-2; however, on 7 May 1979, the NJP imposing official vacated that suspended reduction (the available service record does not identify the reason for this action). On 14 May 1979, the applicant accepted NJP because he possessed marijuana, on or about 6 May 1979; among other punishments, the imposing commander directed the applicant's reduction to private (PV1)/E-1. c. In or around June 1979, the applicant completed his tour in Korea, and his DA Form 2-1 (Personnel Qualification Record – Part II) shows, "DISCHARGE" and that, effective on or about 12 June 1979, he was transferred to the Transfer Point at Oakland Army Base, CA. However, the next entry indicates a subsequent reassignment to Fort Hood, TX, with an arrival at Fort Hood unit, on 12 July 1979. The applicant's available service record does not include any documentation for this period of service. d. On 2 May 1980, the U.S. Army Enlisted Records and Evaluation Center at Fort Harrison, IN, issued the applicant a memorandum that informed him the ABCMR had determined the applicant's service records should show his promotion to PV2, effective 12 July 1979, and promotion to PFC, effective 12 September 1979. No other record of this ABCMR action is available for review. e. On 28 May 1980, the applicant accepted NJP for two specifications of failing to report on time to his place of duty, and one specification of being disrespectful in language toward a sergeant; the applicant was accused of saying, "M__F__, Bullsh__." The imposing commander's punishment included the reduction from PFC to PV2. f. Effective 1 February 1981, the applicant's leadership promoted him to specialist four (SP4)/E-4. On 4 February 1981, the applicant immediately reenlisted for 6 years. On 8 June 1981, the applicant accepted NJP for having had marijuana in his possession, on 29 May 1981. g. On 17 August 1981, the applicant's Fort Hood unit reported him as absent without leave (AWOL) and, on 16 September 1981, dropped him from unit rolls. On 24 November 1981, civil authority arrested the applicant and returned him to military control; orders reassigned the applicant to the Personnel Control Facility (PCF), on Fort Sill, OK, effective 24 November 1981. h. On 30 November 1981, the PCF preferred court-martial charges against the applicant for having been AWOL from 17 August until 24 November 1981 (99 days). On 2 December 1981, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial, under chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he verified no one had subjected him to coercion and that counsel had advised him of the implications of his request. The applicant also acknowledged he was guilty of the charge, but did not indicate whether he intended to submit statements in his own behalf (the available service record is void of any statements the applicant may have prepared); on 2 December 1981, the applicant departed Fort Sill on excess leave. i. On 11 December 1981, the separation authority approved the applicant's separation request and directed his under other than honorable conditions discharge; in addition, orders, dated 18 December 1981, reduced the applicant from SP4 to the lowest enlisted grade. j. On 24 December 1981, orders discharged the applicant under other than honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 3 months, and 9 days' net, creditable active-duty service, of which he served 10 months and 21 days on his 6-year reenlistment contract and had incurred time lost from 19810817 through 19811123. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) listed the awards of the Army Service Ribbon and two marksmanship qualification badges. While item 18 (Remarks) reflects his immediate reenlistment, it does not show his continuous honorable service, from 19780609 to 19840203. 4. A review of the applicant’s service record confirms administrative entries were omitted from his DD Form 214. The awards will be added to his DD Form 214 as administrative corrections and will not be considered by the Board. The Board will consider his request for an upgrade of his characterization of service. 5. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. During the applicant's era of service, Soldiers charged with Uniform Code of Military Justice (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 violation of Article 86 (AWOL for 30 or more days) included a punitive discharge. b. The ABCMR does not grant requests for upgraded characters of service solely to make someone eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his evidence and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 6. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, 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. 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 applicant provided no post service achievements or letters of reference in support of a clemency determination. 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. 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 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the corrections addressed in the Administrative Note(s) below, the Board found 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): A review of the applicant’s service records shows administrative entries were omitted from his DD Form 214 for the service period ending 24 December 1981. As a result, correct his DD Form 214 by adding: * Korea Defense Service Medal * CONTINUOUS HONORABLE SERVICE FROM 19780609 TO 19810203 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. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. 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. b. 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 give the Soldier a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier made 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, in effect at the time, showed the maximum punishments for violations of Article 86 (AWOL for more than 30 days) included a punitive discharge. 4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 8-11 (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 5. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, states for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except “Honorable,” DD Form 214 preparers are to 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, reflect the specific periods of reenlistment as prescribed above. 6. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. a. 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. b. 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) AR20210014782 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210014782 1 ABCMR Record of Proceedings (cont) AR20210014782 1