IN THE CASE OF: BOARD DATE: 14 February 2023 DOCKET NUMBER: AR20220002373 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions to general, under honorable conditions or an honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 in lieu of DD Form 149 (Application for Correction of Military Record), 1 November 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 4 January 1983 * two Self-authored Statements * two letters of support from undated * letter of support from 15 August 2021 * letter of support from 22 September 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 wanted to set the record straight that he dealt with racism during his time in service. After he reenlisted at his unit, he purchased a 1973 Coupe Seville Cadillac and all hell broke loose when they saw the car. The first sergeant told the commanding officer we got one of these but he held his cool. It went downhill from there. The Cadillac he owned as an E-4 caused him to be picked on and harassed every day. b. After service he worked as a plumber, ran his own business, and ran a clean and sober house for 6 years. He has never been a rude, bad, racist, or disrespectful person. c. He suffers from anger and depression and has to live with what happened to him every day because what happed did not have to happen. He went AWOL because he had no other choice. His chain of command was all white males and the deck was stacked against him. d. He would like an upgrade so he can receive medical care. He would also like to express regret for the unauthorized absence without leave. He has a wife and two children and has been an upstanding citizen. 3. A review of the applicant's available service records shows: a. On 5 August 1977, he enlisted in the Regular Army for a period of 6 years at age 25. He completed Basic Combat Training, he completed Advanced Individual Training, and he was awarded military occupational specialty 11B (Infantryman). b. He served in Korea from 28 January 1978 to 17 January 1979. c. He was assigned to: * Company C, 2nd Battalion, 2nd Infantry, Fort Lewis from 5 March 1979 to 9 August 1980 * Company B, 2nd Battalion, 60th Infantry, Fort Lewis, on 10 August 1980 d. On 30 September 1979, he was promoted to specialist/E-4. e. On 20 April 1981, he reenlisted for 3 years and on 12 May 1981, he was awarded the Army Good Conduct Medal. f. On 21 July 1981, he accepted nonjudicial punish (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for going from his appointed place of duty without authority at the Gray Army Airfield Gate, on or about 0635 hours on 2 July 1981. His punishment consisted of reduction to private first class (suspended), forfeiture of $157.00, and extra duty and restriction for 14 days. He appealed this punishment. On 13 August 1981, his battalion commander denied his appeal g. Personnel Actions (DA Forms 4187) show he was reported absent without leave (AWOL) from his unit, Company B, 2nd Battalion, 60th Infantry, Fort Lewis, for 1 day from 15 February 1982 to 16 February 1982. h. On 18 February 1982, he accepted he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty at Building 3654 on 10 January 1982. The continuation sheet listing additional NJP action(s) is not contained in the available records. His punishment consisted of reduction to private 2/E- 2, forfeiture of $309.00 pay for 1 month, and extra duty for 21 days. He did not appeal this punishment. i. His records contain DA Forms 4187 showing his status changed: * On 24 February 1982, from present for duty (PDY) to AWOL * On 24 March 1982, from AWOL to dropped from the rolls (DFR) * On 5 September 1982, from DFR to PDY (apprehended) j. A Military Police Report, 7 September 1982, shows he was apprehended by civil authorities and returned to military control at the Fort Lewis stockade pending movement to Fort Ord, CA. k. On 22 September 1982, court martial charges were preferred against him. A DA Form 458 (Charge Sheet) shows he was charged with one specification of AWOL from Company B, 2nd Battalion, 60th Infantry, Fort Lewis, on or about 24 February 1982 to 5 September 1983. l. The applicant's memorandum requesting a discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with his acknowledgement of his rights; his unit commander's recommendation memorandum for approval of his request; and the separation approval authority memorandum are not contained in his available service records. m. A DA Form 31 (Request and Authority for Leave) shows he was approved excess leave beginning on 22 September 1982. n. Orders issued by Headquarters, 7th Infantry Division and Fort Ord, CA, 29 December 1982, shows he was reassigned to the U.S. Army Transfer Point, Fort Ord, under authority of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) at grade/pay grade private/E-1 with a date of discharge of 4 January 1983. o. On 4 January 1983, he was discharged. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, 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: (1) Block 12c (Record of Service), he completed 4 years, 8 months, and 24 days of net active service this period. (2) Block 13 (Decorations, Medal, Badges, Citations, and Campaign Ribbons Awarded or Authorized: * Army Good Conduct Medal * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Grenade Bar * Army Service Ribbon * Overseas Service Ribbon (3) Block 18 (Remarks): * 105 days excess leave from 22 September 1982 to 4 January 1983 * Immediate reenlistments this period 20 April 1981 (4) Block 29 (Dates of Time Lost This Period) – 15 February 1982 to 15 February 1982, and 24 February 1982 to 4 September 1982. 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 insufficient 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. 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) AR20220002373 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1