IN THE CASE OF: BOARD DATE: 26 July 2023 DOCKET NUMBER: AR20230000270 APPLICANT REQUESTS: * an upgrade of his discharge under other then honorable conditions * a personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), with Affidavit, 9 March 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * County Circuit Court Order of Name Change, 25 August 2006 * Driver's License, 13 November 2020 * Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim), 7 May 2022 * Counsel's Letter to the National Personnel Records Center, 3 June 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: a. This correction should be made because he was not convicted of any crime to be given a discharge under other than honorable conditions. b. He served on active duty from September 1984 to May 1987. While he was stationed in, , he was charged with burglary by local authorities but not convicted. Eventually he was released by civil authorities. His absence due to being held by civil authorities caused the U.S. Army to begin processing him for discharge. c. He was given a discharge under other than honorable conditions with a reenlistment eligibility (RE) code allowing him to serve in the U.S. Army again, conditioned upon an approved waiver. His conduct outside of the U.S. Army was not "persistent." The majority of his service was honest, faithful, meritorious, and of benefit to the nation. 3. He enlisted in the U.S. Army Reserve on 20 August 1984 for a period of 8 years under the Delayed Entry/Enlistment Program with a commitment to enlist in the Regular Army on 16 October 1984. He was discharged from the Delayed Entry/Enlistment Program for immediate enlistment in the Regular Army for a period of 4 years effective 14 September 1984. 4. His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was advanced to the rank/grade of private first class/E-3 on 14 September 1985. 5. The DA Form 4187 (Personnel Action), 26 September 1985, shows his unit reported his duty status changed from present for duty to confined by civil authorities effective 25 September 1985. Section IV (Remarks) states: "SM [service member] placed in CCA [confinement by civil authorities] at Liberty County Jail." 6. His release from confinement and return to duty is not in evidence. 7. The DA Form 4187, 18 October 1985, shows his unit reported his duty status changed from present for duty to absent without leave (AWOL) effective 16 October1985. 8. The DA Form 4187, 12 November 1985, shows his unit reported his duty status changed from AWOL to present for duty effective 8 November1985. 9. The DA Form 4187, 12 November 1985, shows his unit reported his duty status changed from present for duty to AWOL effective 9 November 1985. 10. The DA Form 4187, 15 November 1985, shows his unit reported his duty status changed from AWOL to present for duty effective 13 November1985. 11. The DA Form 4187, 2 December 1985, shows his unit reported his duty status changed from present for duty to AWOL effective 2 December 1985. 12. The DA Form 4187, 3 December 1985, shows his unit reported his duty status changed from AWOL to present for duty effective 3 December1985. 13. The DA Form 4187, 13 December 1985, shows his unit reported his duty status changed from present for duty to AWOL effective 12 December 1985. 14. The DA Form 4187, 21 February 1986, shows his unit reported his duty status changed from AWOL to dropped from the unit rolls effective 13 January 1986. Section IV (Remarks) states: "Member was AWOL since 12 Dec[ember] [19]85, 1430 [hours] and dropped from rolls." 15. Section IV (Remarks) of the DA Form 4187, 17 March 1986, corrected the date he was dropped from the unit rolls to read 20 December 1985. 16. Headquarters, U.S. Army Personnel Control Facility, Orders 36-2, 25 February 1987, assigned him to the Special Processing Company, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, effective 13 August 1986. The additional instructions state the applicant was apprehended by civil authorities on 13 August 1986 for civilian charges of burglary and breaking and entering. Th applicant was confined in the Jail, , , until 18 August 1986 when he was extradited to the County Jail, ,. The applicant appeared in County Superior Court, , , 24 October 1986 and was sentenced to 5 years of probation, fined $1,050.00, and 90 days in the Correctional Institution, ,. The applicant's expected release date was 8 March 1987. 17. The DA Form 4187, 26 September 1985, shows his unit reported his duty status changed from confined by civil authorities to present for duty effective 8 March 1987. Section IV (Remarks) states: "On 8 Mar[ch] [19]87 Soldier completed sentence and returned to military control at, same date. Soldier joined Special Processing Company, this sta[tion] on 12 Mar[ch] [19]87." 18. The Headquarters, Personnel Control Facility memorandum (Admission of AWOL for Administrative Purpose), 17 March 1987, the applicant makes the following statement: a. He waives all defenses that may have become known had his defense counsel been able to review his records. b. He knowingly, willingly, and voluntarily declares that he was absent without leave from the U.S. Army from 12 December 1985 to 8 March 1987. He makes this admission for administrative purposes only so he may process out of the Army and realizes in doing so that he may be given an other than honorable discharge. c. He further declares that his military defense counsel has explained to him, to his complete understanding and satisfaction, all the legal and social ramifications of that type of discharge and what it will mean to him in the future. 19. The DD Form 458 (Charge Sheet), 17 March 1987, shows he was charged with one specification of absenting himself from his organization without authority, to wit: Company A, 2d Battalion, 34th Infantry Regiment, located at Fort Stewart, GA, on or about 12 December 1985 and remaining so absent until on or about 8 March 1987. 20. On 18 March 1987, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He understood that he may request discharge for the good of the service because of the charge of violation of Article 86 (AWOL), Uniform Code of Military Justice, from 12 December 1985 to 8 March 1987. a. He is making this request of his own free will and has not been subjected to any coercion whatsoever by any person. By submitting this request for discharge, he acknowledges that he understood the elements of the offense charged and is guilty of the charges against him, which authorizes the imposition of a bad conduct or dishonorable discharge. Moreover, he states that under no circumstances does he desire further rehabilitation, for he has no desire to perform further military service. b. He acknowledged he understood that if his discharge request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He further acknowledged that as a result of such a discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. He elected not to submit a statement in his own behalf. 21. The Special Processing Company, U.S. Army Personnel Control Facility, 2d Armor Training Brigade (Armor Leader), Fort Knox, memorandum from his company commander (Request for Discharge for the Good of the Service under the Provisions of Army Regulation 635-200), 18 March 1987, states: a. In accordance with Army Regulation 635-200, the applicant's request for discharge for the good of the service is forwarded for appropriate action. b. Recommend approval. The applicant's conduct has rendered him triable by court- martial under circumstances which could lead to a bad conduct or dishonorable discharge. Based on the applicant's previous record, punishment can be expected to have a minimal rehabilitative effect. He believes a discharge at this time to be in the best interest of all concerned. c. There does not appear to be any reasonable grounds to believe the applicant is, or was, mentally defective, deranged, or abnormal at the time of his misconduct. 22. On 23 March 1987, the Commander, Headquarters, 2d Armor Training Brigade (Armor Leader), approved his request for discharge for the good of the service and directed his discharge under other than honorable conditions. He also directed his reduction to private/E-1 prior to execution of this discharge if he is serving in a pay grade above E-1 at the time of this action. 23. Headquarters, U.S. Army Personnel Control Facility, Orders 55-5, 24 March 1987, reduced him from private two/E-2 to private/E-1 effective 23 March 1987. 24. He was discharged on 1 May 1987. His DD Form 214 shows in: * item 4a (Grade, Rate or Rank) – Private * item 4b (Pay Grade) – E-1 * item 12c (Net Active Service This Period) – 1 year, 3 months, and 25 days * item 24 (Character of Service) – Under Other Than Honorable Conditions * item 25 (Separation Authority) – Army Regulation 635-200, Chapter 10 * item 26 (Separation Code) – KFS (good of the service in lieu of court-martial) * item 27 (Reenlistment Code) – 3B, 3C, and 3 (see references) * item 28 (Narrative Reason for Separation) – For the Good of the Service – in Lieu of Court-Martial * item 29 (Dates of Time Lost During This Period) – * 16 October 1985-7 November 1985 * 9 November 1985-12 November 1985 * 2 December 1985-2 December 1985 * 12 December 1985-7 March 1987 25. The following documents substantiate his name change from to ; however, he has not requested a name change: * County Circuit Court Order of Name Change, 25 August 2006 * Driver's License, 13 November 2020 * Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim), 7 May 2022 * Counsel's Letter to the National Personnel Records Center, 3 June 2022 26. There is no evidence indicating the applicant's conduct outside of the Army for review. Of the applicant's 4-year enlistment agreement, he served 1 year, 3 months, and 25 days honorably and was not awarded any individual decorations. ? BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, 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 and available military records, the Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that would attest to his honorable conduct that might have mitigated the discharge characterization. The Board found insufficient evidence of in-service mitigating factors for the serious misconduct to weigh a clemency determination. The Board agreed the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of his under other than honorable conditions (UOTHC) discharge. Therefore, the Board denied relief. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. 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. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 20 July 1984, set policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. the basic authority for the separation of enlisted personnel. a. Paragraph 3-7(a) stated 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. Paragraph 3-7(b) stated 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. c. Paragraph 3-7(c) stated a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, security reasons, or for the good of service. d. Chapter 10 (Discharge for the Good of the Service) provided that a Soldier who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. (1) Commanders would insure that an individual would not be coerced into submitting a request for discharge for the good of the service. The member would be given a reasonable time (not less than 72 hours) to consult with a consulting counsel and to consider the wisdom of submitting such a request for discharge. (2) The request could be submitted at any time after charges were preferred and must have included the individual's admission of guilt. (3) If the member elected to submit a request for discharge for the good of the service after receiving counseling, he would personally sign a written request certifying that he had been counseled, that he understood his rights, that he may receive a discharge under other than honorable conditions, and that he understood the adverse nature of such a discharge and the possible consequences. (4) A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record. e. Paragraph 14-4 (Authority for Discharge or Retention) stated upon determination that a member is to be separated with a discharge under other than honorable conditions, the separation authority will direct reduction to the lowest enlisted grade by the reduction authority. 4. Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program), 30 January 1987, prescribed eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army and the U.S. Army Reserve. Chapter 3 prescribed basic eligibility for prior-service applicants for enlistment and included a table of RE codes. * RE code 3 – persons who are not qualified for continued Army service, but disqualification is waivable – ineligible for reenlistment unless a waiver is granted * RE code 3B – applies to persons who have lost time during their last period of service – ineligible for enlistment unless a waiver is granted * RE code 3C – applies to persons who have completed over 4 months of service who do not meet the basic eligibility pay grade requirements – ineligible for enlistment unless a waiver is granted 5. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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) AR20230000270 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1