IN THE CASE OF: BOARD DATE: 7 February 2023 DOCKET NUMBER: AR20220002024 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), 16 November 2021. 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 loved every minute he spent in the Army. b. He was married and had a 3-year old daughter at the time he received orders for Germany. His young family had no place to live and he was only an E-3 so they could not go with him. He did not draw enough pay for them to live without him (while) he worked a second job. He felt he had no choice. c. He received bad advice from his platoon sergeant as he was told not to report back to Germany but to wait until he was dropped from the rolls, and then to report to the nearest stateside post to turn himself in. 3. The applicant provided an application for upgrade with his statement. 4. A review of the applicant's service records shows: a. On 29 September 1981, he enlisted in the Regular Army for a period of 3 years at grade/pay grade private/E-1 and at age 22. He entered One Station Unit Training at Fort McClellan and completed Basic Combat Training and Advanced Individual Training, where he was awarded military occupational specialty 95B (Military Police). b. On 13 February 1982, he was assigned to 546th Military Police Company, Fort Sill, OK. c. He was promoted to private 2/E-2 on 1 April 1982 and he was promoted to private first class/E-3 on 1 August 1982. d. On 1 June 1983, he was assigned to 8th Military Police Company, Rose Barracks, Bad Kreuznach, Germany. e. A DA Form 4856 (General Counseling Form), 10 June 1983, shows he was counseled by a senior noncommissioned officer on 3 June 1983 and concurred with its written notations, in that, in effect: * He was concerned that his wife and daughter were living with his mother-in- law with her husband in a dangerous situation with their housing arrangement in which she could not establish a household by herself * His concern that he should not have been transferred to U.S. Army Europe * He had been placed on the weight control program in November 1982 and had not made any progress on the program and had all favorable actions suspended * He felt he should be with his wife and child and that it would not matter what the circumstances or costs were * he felt he should not be separated from his family, he had no intentions of losing any weight, and he would like nothing better than to be discharged from the Army under the provisions of the overweight program f. On 23 June 1983, he was granted ordinary leave for 30 days. g. His records contain DA Forms 4187 (Personnel Action) showing: * on 23 Jun 1983, he was granted ordinary leave for 30 days * on 23 July 1983, his status was reported absent without leave (AWOL) * on 23 August 1983, his status was reported changed from AWOL to dropped from the rolls (DFR) h. On 8 August 1983, the Commanding Officer, 8th MP Company, suspended favorable personnel actions and on the same date, notified his next of kin of his AWOL status. i. On 17 October 1983, he voluntarily surrendered to military authorities and military control at Fort Sill, OK, and was assigned to Personnel Control Facility, U.S. Army Field Artillery Center and Fort Sill. j. On 18 October 1983, court martial charges were preferred against him. A DA Form 458 (Charge Sheet) shows he was charged with one specification of AWOL from 8th MP Company, Germany , on or about 23 July 1983 to on or about 17 October 1983. k. On the same date, he voluntarily waved a separation medical examination. l. After consulting with legal counsel on 19 October 1983, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation (AR) 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 not to do so m. On 27 October 1983 and 2 November 1983, respectively, his immediate and intermediate commanders recommended approval of his 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. n. On 8 November 1983, the separation approval authority approved his request for discharge, under the provisions of Chapter 10, AR 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 o. On 18 November 1983, he was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was discharged under the provisions of AR 635-200, chapter 10, for the good of the service-in lieu of trial by court-martial, with a character of service of under other than honorable conditions, and a separation code of KFS, Reentry Code 3B. It further shows he had 85 days lost time from 23 July 1983 to 16 October 1983. His DD Form 214 indicates he was separated on temporary records and does not show all block entries, but his records indicate entries should be made for the following blocks: (1) Block 12 (Record of Service), he completed 1 year, 10 months, and 25 days of net active service this period. (2) Block 13 (Decorations, Medal, Badges, Citations, and Campaign Ribbons Awarded or Authorized: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Grenade Bar * Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) and Pistol (45 caliber) Bars (3) Block 18 (Remarks) – 30 days excess leave from 19 October 1983 to 18 November 1983. p. 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: 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. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. The applicant provided no evidence of 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002024 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1