IN THE CASE OF: BOARD DATE: 11 July 2023 DOCKET NUMBER: AR20220011534 APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), to remove the entry, For The Good of The Service - In Lieu of Court-Martial, in block 28 (Narrative Reason for Separation) and replace it with a more favorable entry. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), undated * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the U.S.), 12 December 2022 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, he is a decent person who loves his country, and he is a disabled veteran with unemployable benefits. He feels correcting his narrative reason for separation will make his discharge look better. 3. On 6 April 1982, the applicant enlisted in the Regular Army. On 22 January 1984, the applicant was assigned to Company D, 23rd Engineer Battalion, in Germany. 4. On 16 October 1984, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order on or about 25 September 1984. His punishment consisted of 14 days of restriction; forfeiture of $162.00 pay (suspended to be automatically remitted if not vacated before 13 January 1985); and reduction to the grade of private first class (suspended to be automatically remitted if not vacated before 13 January 1985). 5. A Medical Examination for Separation Statement of Option, completed on 11 March 1985, shows, in part the applicant did not desire a separation medical. 6. On 16 March 1985, his duty status changed from present for duty (PDY) to absent without leave (AWOL). 7. On 27 March 1985, a bar to reenlistment was issued to the applicant. The bar states that the applicant had demonstrated an inability to perform in a military environment, as demonstrated by numerous incidents of failure to be at place of duty, poor attitude, poor personal and uniform appearance and failure to obey lawful orders. 8. On 2 April 1985, his duty status changed from AWOL to present for duty. On 5 April 1985, the applicant was apprehended by Hanau Military Police Station and confined at Mannheim Confinement Facilities. 9. On 5 April 1985, court-martial charges were preferred against the applicant for – * being absent from his unit on or about, 16 March 1985, and remaining so absent until on or about, 2 April 1985 * being absent from his unit on or about, 4 April 1985, and remaining so absent until on or about 5 April 1985 10. On 20 March 1985, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an Under Other Than Honorable Conditions Discharge if this request is approved, and of the procedures and rights available to him. Following this consultation, the applicant requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: a. He understood that by submitting this request for discharge he acknowledge that he is guilty of the charges against him or of a lesser included offenses therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge. b. He had been advised and understand the possible effects of an under other than honorable discharge. As a result of the issuance of such a discharge he will be deprived of many or all Army benefits that he may be ineligible for many, or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a veteran under both state and federal law. c. He understood that he may expect to encounter substantial prejudice to civilian life because of an Under Other than Honorable Discharge. He further understood that there is no automatic upgrading nor review by any government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records. The act of consideration by either board does not imply that his discharge would be upgraded. d. He also understood that he may, up until the date the discharge authority approves his discharge, withdraw his acceptance of this discharge. 11. On 14 April 1985, the immediate and intermediate commanders recommended approval of the applicant's request for discharge and the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 12. On 8 May 1985, additional court-martial charges were preferred against the applicant. A DD Form 458 (Charge Sheet) show she was charged with * One specification of, on or about 19 June 1985, through neglect, missing movement of his unit, in Germany * One specification of willfully disobeying an order of his commanding officer to not leave the base without a noncommissioned officer 13. Consistent with the chain of command recommendations, the separation authority approved the applicant's elimination from the service under the provisions of AR 635- 200, Chapter 10 and ordered the issuance of an Other Than Honorable Conditions Discharge Certificate and the applicant's reduction to private/E-1. 14. The applicant was discharged from active duty on 20 June 1985 under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of court-martial, with the issuance of an Other Than Honorable Conditions Certificate. He was assigned Separation Code JFS and Reentry Code RE-3/3B. He completed 3 years, 1 month, and 28 days of active service, with 17 days of lost time from 16 March 1985 to 1 April 1985, and he was awarded or authorized the: Sharpshooter Marksmanship Qualification Badge with Rifle Bar, M-16, Overseas Service Ribbon, and Army Service Ribbon. 14. On 13 June 1989, the Army Discharge Review Board (ADRB), granted him relief in the form of a change to his character of service from under other than honorable conditions to under honorable conditions. 15. The applicant was reissued a new DD Form 214 that shows the following corrections in item 24 (Character of Service) – from “Other Than Honorable Conditions” to “Under Honorable Conditions”. 16. By regulation (AR 635-200), a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 17. 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 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. a. 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 and carry an under other than honorable conditions characterization of service. Although the ADRB upgraded his character of service to general, under honorable conditions., that action did not change the underlying reason for his discharge. b. The applicant’s narrative reason for separation and separation code were assigned based on the fact that he was discharged under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. Absent his offenses (AWOL, missed movement, disobeying orders), there was no reason to prefer court-martial charges against him, and absent the court-martial charges, there was no reason for him to request a voluntary discharge. The narrative reason for separation and separation code associated with this type of discharge are "in lieu of trial by court-martial" and the separation code of "KFS." c. Based on a preponderance of evidence, the Board determined that the character of service, narrative reason for separation and Separation Code the applicant received upon separation were not in error or unjust. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: xx: 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 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600–8–19. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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. b. 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. 3. Army Regulation 635-5 (Separation Documents), establishes the standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty and provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. Army Regulation 635-5 further stated to enter in item 28, Narrative Reason for Separation. This is based on regulatory or other authority and can be checked against the cross reference in AR 635–5–1. These references show the narrative reason for separation, the SPD Code, and RE codes listed on the applicants corrected/reissued DD Form 214 are correct as entered. 4. 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. 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) AR20220011534 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1