IN THE CASE OF: BOARD DATE: 22 November 2023 DOCKET NUMBER: AR20230003367 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), DATED? * self-authored statement * reference statement, from , 15 February 2022 * reference statement, from ., 2 March 2022 * reference statement, from , 11 January 2023 * reference statement, from , date unknown FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Dockets Number AR20150016384 and AR20180002592 on 9 March 2017 and 22 January 2021, respectively. 2. The applicant states, in effect, his was unable to return to base by formation due to an ill child and an accident. He was told not to return if he could not make it to formation in time. 3. The applicant enlisted in the Regular Army on 24 May 1979. 4. A DA Form 2-1 (Personnel Qualification Record) shows the highest rank/grade he obtained was private 2 (PV2)/E-2 with a date of rank of 29 June 1981. 5. Eight DA Forms 4187 (Personnel Action), show the following: a. On 21 April 1980, he was blocked from promotion to advancement of private first class (PFC)/E-3 because his duty performance did not warrant promotion consideration. b. On 17 July 1980, his status changed from present for duty (PFD) to absent without leave (AWOL), he did not return from a 3-day pass from 12-14 July 1980. c. On 17 July 1980, his status changed from AWOL to PFD, the applicant surrendered himself. d. On 29 August 1980, his status changed from PFD to AWOL on 27 August 1980 e. On 29 August 1980, his status changed from AWOL to PFD on 29 August 1980. f. On 4 August 1981, his status changed from PFD to AWOL on 4 August 1981. g. On 3 September 1981, his status changed from AWOL to dropped from rolls (DFR) on 3 September 1981. h. On 22 October 1981, his status changed from DFR to PFD on 2 October 1981, he was apprehended by civil authorities. 6. A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), shows on 23 September 1980, he accepted nonjudicial punishment for violating Article 86 of the UCMJ, specifically being AWOL from 27 August 1980 to 29 August 1980. 7. The available record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing. 8. By memorandum, subject: Request for Discharge for the Good of the Service for [the Applicant], dated 21 October 1981, states the applicant was interviewed and he was aware of the nature of the interview and consequences of a discharge under other than honorable conditions (UOTHC). The applicant desired elimination from the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), Chapter 10, under less than honorable conditions. It additional states: a. The Soldier stated that his approximate 59 days of being AWOL were caused by family problems. b. He departed AWOL when he was denied a weekend pass to go home and see one of his children who was very sick and ultimately hospitalized. c. He further stated that he had requested a hardship discharge through his section sergeant, but paperwork had not been processed prior to his departure. d. On 3 October 1981, he surrendered to civil authorities. 9. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 9 December 1981, under the provisions of AR 635-200, Chapter 10, by reason of administrative discharge – conduct triable by court-martial, in the grade of E-1. His service was characterized as UOTHC. His DD Form 214 also shows in: * item 12c (net active service this period) – 2 years, 4 months, and 15 days * item 26 (separation code) – JFS * item 27 (reentry code) – RE-3, RE-3B * item 29 (dates of time lost during this period) – 15 July 1980 to 16 July 1980, 27 August 1980 to 28 August 1980, and 4 August 1981 to 1 November 1981 10. He additionally provides four-character reference statements, which in summary state, he is an active member in the community and his church, as well as a law-abiding citizen. 11. The ABCMR reviewed the applicant’s request to upgrade his discharge on 22 January 2021. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of behavioral health conditions or post-service achievements 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 in unjust. 12. Discharges under the provisions of AR 635-200, Chapter 10, are voluntary requests for discharge for the good of the service, from the Soldier, to avoid a trial by court- martial. An UOTHC character of service is normally considered proper. 13. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was 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. One potential outcome was to deny relief based on the applicant’s misconduct with continuous periods of AWOL. However, upon review of the applicant’s petition and available military records, the Board majority found the applicant’s self-authored statement and his multiple character letters of support that attested to his integrity, commitment within his community and service to the religious community over the past 20 plus years. 2. The Board found sufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board noted, the applicant’s remorsefulness for his AWOL in an attempt to care for his family. Based on a preponderance of evidence, the Board determined under liberal consideration that the character of service the applicant received warranted relief and found an upgrade to a general under honorable conditions was appropriate. Therefore, the Board granted relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 9 December 1981 showing his characterization of service as General Under Honorable Conditions. 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. Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 2. AR 635-200, in effect at the time, provided guidance for the administrative separation of enlisted personnel: a. Chapter 10 of this regulation provided a member who has committed an offense or offenses, the punishment for which, under the UCMJ and the Manual for Courts- Martial, 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, until final action on the case by the court-martial convening authority. A member who is-under a suspended sentence of a punitive discharge may also submit a request for discharge for the good of the Service. An UOTHC 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. b. An honorable discharge is a separation with honor. The issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability, and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. c. An under honorable conditions (general), discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct and the good of the service. 3. 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/NR) 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards 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) AR20230003367 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1