IN THE CASE OF: BOARD DATE: 14 July 2022 DOCKET NUMBER: AR20220000964 APPLICANT’S REQUEST: * The applicant requests upgrade of his under other than honorable conditions discharge to under honorable conditions (general). * Personal appearance before the board. 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 three year time frame provided in Title 10, United States Code (USC), 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 upon redeployment from the Persian Gulf War, his parents were homeless and living out of their vehicle; he returned to his unit after his authorized leave date and as a result, he was reduced in rank and restricted to the barracks. He felt displaced and was unsure what to do so he went to the airport and went back home to help his parents. a. The following day he contacted his immediate chain of command, who asked him what he wanted to do, to which he advised he wanted to stay home and help his parents. He was then advised to report to Fort Ord for processing and he would be discharged within the next two weeks. b. He wanted to stay in and continue to serve and help his parents, but he did not know how to do both. He has served his country with honor and integrity; his intentions were to do good. At the time, he was unaware there were other alternatives available to him, had he known about them he would have reached out for help through those processes. 3. The applicant's service records show: a. On 2 August 1988, at the age of 17 years old with parental consent and 11 years of secondary education, the applicant enlisted in the Regular Army for a period of 4 Years. Upon completion of training he was awarded military occupational specialty (MOS) 52D (Power Generation Equipment Repairer) and reported to his first unit of assignment Headquarters, Headquarters Company, 3rd Battalion, 187th Infantry Regiment Fort Campbell, KY on 13 January 1990. He successfully completed Air Assault Course on 2 February 1990 and on 1 June 1990 he was advanced to the rank of private first class (PFC/E3). b. A Data Base Roster compiled by the Defense Manpower Data Center shows the applicant was deployed with the 1st Armored Division in support of Operation Desert Shield/Desert Storm from 22 February 1991 to 7 April 1991 (44 days). c. On 14 May 1991, the applicant's commander initiated a Report to Suspended Favorable Personnel Actions (FLAG) for Adverse Action-AWOL and changed his duty from present for duty (PDY) to AWOL. His grade/rank shows as private first class. (1) His records are void of documents that provide specific information regarding the circumstances that led to reporting him AWOL or the timeline his duty status changed back to PDY and/or any documents regarding removal of the FLAG, counseling's or nonjudicial punishment. Based on the available evidence at some point he returned; and (2) On 24 June 1991, the applicant's commander initiated, for the second time, a Report to Suspended Favorable Personnel Actions (FLAG) for Adverse Action-AWOL and changed his duty from present for duty (PDY) to AWOL. It is noted that these documents reflect the applicant’s rank as private two (PV2/E2). His records are void of documents that provide specific information regarding his reduction in rank; and (3) On 24 July 1991, the applicant's headquarters changed his duty status from AWOL to dropped from unit rolls (DFR). On 5 August 1991, the applicant surrendered to military authority, and released to the U.S. Army Personnel Control Facility Fort Ord, CA (USAPCF). His duty status was changed from DFR to returned to military control and PDY; and (4) Applicant has both a permanent and temporary DA Form 2-1, (personnel qualification record (PQR)) show in item 21 (time lost) from 24 June 1991 to 4 August 1991 (48 days). Both records are void of an entry regarding the initial period of AWOL that began 14 May 1991. d. On 8 August 1991, the USAPCF Fort Ord, CA Commander preferred court- martial charges against the applicant for violation of Article 86 (AWOL 24 June 1991 – 5 August 1991). e. On 9 August 1991, 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. He further acknowledged he was guilty of the charges, and he elected not to submit a statement in his own behalf. His records are void of documents that provide specific information regarding his reduction in rank. f. A memorandum from the Commander thru the Staff Judge Advocate, subject: Request for Discharge for the Good of the Service under the provision of Chapter 10, AR 635-200, only provided facts regarding his pending charges from his second period of AWOL and shows the applicant did not have any previous military convictions or nonjudicial punishment. g. On 31 October 1991, the separation authority approved the applicant's request and ordered discharge under other than honorable conditions with a reduction to the lowest enlisted grade private (PVT/E-1). His records are void of a separation medical examination and/or mental health evaluation. h. On 19 November 1991, he was discharged accordingly. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows was a high school graduate or equivalent, he completed 2 years, 2 months and 28 days of active service this period, with lost time from 24 June 1991 to 5 August 1991. He and was awarded or authorized the Army Service Ribbon. Additionally, item 18 (Remarks) provides that he was separated with temporary records and Soldier's affidavit and a DD Form 215 (Correction to DD214) would be issued to provide missing information or to correct any information. 4. 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. 5. Army Regulation 635-200 provides discharges under the provisions of Chapter 10 are voluntary discharge requests in-lieu of trial by court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. An under other than honorable conditions is authorized and normally considered appropriate; however, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 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. 6. The applicant requests a personal appearance before the board. Per Army Regulation (AR) 15-185: 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. 7. 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. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement (circumstances regarding the periods of AWOL), his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of the evidence, the Board determined 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. 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, set forth the basic authority for the administrative separation of enlisted personnel, it provides: a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would clearly be inappropriate. b. 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 after having access to counsel. The regulation stated the Soldier should receive a reasonable amount of time (not less than 72 hours) to consult with counsel prior to making his/her decision. Once the decision was made, the Soldier was 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. In addition, the Soldier could submit statements in his/her own behalf for the separation authority's consideration prior to a decision on approval and character of service. d. Chapter 18, currently in effect, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 3. The Manual for Courts-Martial, United States, 1984, Maximum Punishment Chart showed Article 86 (AWOL for more than 30 days) included a bad conduct discharge; when terminated by an apprehension, a dishonorable discharge could be adjudged. 4. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states 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. b. 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. 5. AR 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 6-1e (Reductions) stated separation authorities were required to reduce Soldiers to the lowest enlisted grade when they were being separated per an approved under other than honorable conditions discharge. 6. 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) AR20220000964 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20220000964 1 ABCMR Record of Proceedings (cont) AR20220000964 1