IN THE CASE OF: BOARD DATE: 15 February 2023 DOCKET NUMBER: AR20220002489 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions to an honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 9 November 2021 * Self-authored Statement, 1 November 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 12 February 1981 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); 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: a. He enlisted in the U.S. Army in 1980 when he was 20 years old. His wife also enlisted and soon became pregnant. They were assigned to Fort Carson. b. His wife was very ill during her pregnancy and was prescribed Bendectin for nausea and vomiting. It was discontinued because it caused congenital malformations. She developed pregnancy-induced diabetes, dizziness, and syncope. Her OB/GYN physician recommended she not be left alone. They lived off-post in their apartment and had no close friends since they were from another State. c. He was assigned to go downrange for several months, leaving his wife behind, against medical advice. He informed his sergeant major and asked for another assignment who said if he did not go down range, he would be considered absent without leave (AWOL). He went AWOL but reported once his platoon returned and was sent to lockup for an extended time. d. He believes he was wrongly discharged and hopes a rightful decision can be made. 3. The applicant provides a self-authored statement with his application with a copy of his DD Form 214. 4. A review of the applicant's service records shows: a. On 18 January 1980, he enlisted in the Regular Army for a period of 3 years at age 20. He completed Basic Combat Training, he completed Advanced Individual Training and he was awarded military occupational specialty 11B (Infantryman). b. His records contain DA Forms 4187 (Personnel Action) showing his status changed: * on 1 October 1980 from present for duty (PDY) to absent without leave (AWOL) * on 1 November 1980 from AWOL to dropped from the rolls (DFR) * on 8 December 1980 from DFR to PDY c. On 11 December 1980, he underwent a medical examination and gave a report of medical history as requested by his command for the purpose of separation. The examining physician noted he was qualified for separation. d. A commander's information and summary report, 15 December 1980, shows his commander conducted an interview of the applicant and noted: * he accepted nonjudicial punishment under provisions of Article 15 of the Uniform Code of Military Justice for 2 days' AWOL in both June 1980 and August 1980 * the applicant stated he went AWOL from October 1980 to December 1980 because he was having problems with his wife and his grandmother was near death with cancer * he felt leave would be denied to him since he was on bad terms with his commanding officer * his wife was a Soldier stationed at 4th Adjutant General Battalion and was leaving service due to pregnancy * he did not request leave because his command would not approve it so he took the time he needed * he turned himself in to his unit * the applicant was not retainable due to a combination of family problems and inability to adapt to military requirements e. On 15 December 1980, court martial charges were preferred against him. A DA Form 458 (Charge Sheet) shows he was charged with one specification of AWOL from B Company, 1st Battalion, 11th Infantry, Fort Carson, on or about 1 October 1980, to on or about 8 December 1980. f. After consulting with legal counsel on 16 December 1980, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In doing so, he acknowledged that the charges preferred against him under the UCMJ, authorized the imposition of a bad conduct discharge or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * by submitting the request, he was acknowledging he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized imposition of a bad conduct or dishonorable discharge * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he would forfeit all accrued leave and be reduced to the lowest grade of E-1 * he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge * he was advised he could submit any statements he desired in his own behalf, and elected to do so g. On the same date, he provided written statements in response to a questionnaire in support of his request for discharge for the good of the service. In making his voluntary statement, he noted, in part: (1) His wife wanted a divorce because of his drinking problems and drugs. His grandmother was dying o cancer and he could not get a pass because he was in trouble with his commanding officer. He did not believe he could cope with his own problems and the Army at the same time. (2) He would return to his old job as a welder and build off-shore rigs to make twice the money. He did his job in the Army right but he went back on his word. h. On 17 December 1980, he underwent a mental status evaluation (DA Form 3822- R) by the Chief Psychiatrist, U.S. Army Hospital, Fort Carson, as requested by his command. The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings. The examiner cleared him for administrative action deemed appropriate by his commander. i. On 19 December 1980, the applicant requested and was granted excess leave. j. On 9 January 1981, his commander recommended approval of the applicant's request for discharge for the good of the service, under provisions of Chapter 10, AR 635-200, with an under other than honorable conditions discharge, and forwarded his request to the approval authority. In his memorandum, the unit commander noted the applicant had accepted two instances of NJP under the provisions of Article 15 of the UCMJ. The referenced NJP are not contained in the available records. k. On 14 January 1981, his intermediate commander recommended approval of the applicant's request with issuance of an under other than honorable conditions discharge and forwarded his request to the approval authority. l. On 10 February 1981, the separation approval authority (Commanding General of Fort Carson) approved his request for discharge, under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service. He directed issuance of an Other Than Honorable Conditions Discharge Certificate and that he be reduced to private/E-1 in accordance with Army Regulation 635-200. m. On 26 February 1981, he was discharged. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service-for conduct triable by court-martial, with a character of service of under other than honorable conditions, and a separation code of JFS. It further shows he had 67 days lost time from 1 October 1980 to 7 December 1980. His DD Form 214 further indicates: (1) Block 12 (Record of Service), he completed 10 months and 25 days of net active service this period. (2) Block 13 (Decorations, Medal, Badges, Citations, and Campaign Ribbons Awarded or Authorized: Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars (3) Block 18 (Remarks) – 67 days excess leave from 19 December 1980 to 26 February 1981. n. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 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, available military records, the Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. The Board found the applicant’s record exhibit numerous instances of misconduct during his 10 month and 25 days of net active service this period. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied 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. 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 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 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 1-13 provided: (1) An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. Only the honorable characterization may be awarded a member upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty training or where required under specific reasons for separation unless an entry level status separation (uncharacterized) is warranted. (2) A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. b. Chapter 10 stated a member who has committed an offense or offenses, the punishment of which under the UCMJ and the Manual for Court Martial, 1969 (Revised Edition) includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the member, or, where required, after referral, until final actions by the court-martial convening authority. (1) A medical examination is not required but may be requested by the member under Army Regulation 40-501 (Medical Services – Standards of Medical Fitness), chapter 10. A member that requests a medical examination must also have a mental status evaluation before discharge. (2) Commanders will insure that a member will not be coerced into submitting a request for discharge for the good of the service. The member will be given a reasonable time (not less than 72 hours) to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. Consulting counsel will advise the member concerning: * the elements of the offense or offenses charged * burden of proof * possible defenses * possible punishments * provisions of Chapter 10 * requirements of voluntariness * type of discharge normally given under provisions of Chapter 10 * rights regarding the withdrawal of the member's request * loss of Veterans Administration benefits * prejudice in civilian life because of the characterization of the discharge (3) The separation authority will be a commander exercising general court- martial jurisdiction or higher authority. However, authority to approve discharges in cases in which a member has been AWOL for more than 30 days and has been dropped from the rolls of his or her unit as absent in desertion, and has been returned to military control, may be delegated to the commander exercising special court-martial convening authority over the member. (4) An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the service. However, the separation authority may direct a General Discharge Certificate if such is merited by the member's overall record during the current enlistment. 4. Army Regulation 635-5-1 (Personnel Separations – Separation Program Designators), in effect at the time, listed the specific authorities, regulatory, statutory, or other directive, and reasons for separation from active duty, active duty for training, or full time training duty. The separation program designator "JFS" corresponded to "For the good of the service" and the authority, Army Regulation 635-200, chapter 10. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002489 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1