IN THE CASE OF: BOARD DATE: 26 October 2023 DOCKET NUMBER: AR20230003451 APPLICANT REQUESTS: an upgrade of his characterization of service from "entry level status" to under honorable conditions (general) and a personal appearance via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * General Education Development Test Transcript, 10 February 1983 * Résumé 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. He does not want anything from the Army other than his character of service changed. He has been embarrassed since the day he left Fort Ord, California, and disgraced amongst his family and friends. He worked hard all his life and he left his job during the pandemic to take care of his mother who died on 4 September 2020 from cancer. He also took care of his father who passed away in 2006. b. During basic training he was in several altercations with other Soldiers, and he asked his Platoon Sergeant to separate him from military service, after which, he was sent to the military doctor for an evaluation. He was very depressed, and the doctor recommended his separation. His Sergeant First Class disregarded the medical advice and told him, "There is nothing wrong with you, get back to training." He believes they thought he was an exceptional Soldier and wanted him to stay; they did not care about his personal problems. c. He spoke to the Sergeant again and he was told, "just leave then!" He completed basic training, and he took a flight back home. He was later contacted by the military, and he returned to the nearest Army base which was Fort Ord, California. The Captain he dealt with was rude and did not care to even ask why he wanted to be separated. He seemed to hate him for the choice he made and called him a coward, dismissed him, and said, “we will get you the hell out of here! now get out of my site.” He had no idea what type of discharge he had until he applied for two different police officer positions and was turned down both times. 3. The applicant enlisted in the Regular Army on 8 December 1982. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the uniform code of military justice (UCMJ) on 23 February 1983 for being absent from his unit, without authority, from on or about 9:00 a.m. on 20 February 1983 until on or about 8:30 p.m. 20 February 1983. 5. His record contains DA Forms 4187 (Personnel Action) dated 12 Mar 1983, 11 April 1983, and 11 June 1983, which show: a. the below changes to applicant's duty status: * present for duty (PDY) to absent without leave -(AWOL) - 12 March 1983 * AWOL to dropped from the rolls (DFR) - 11 April 1983 * DFR to PDY - 11 June 1983 b. the applicant was apprehended by civilian authorities and returned to military control. 6. Court-martial charges were preferred against the applicant on 22 June 1983; specifically, he was charged with absenting himself from his unit without leave from on or about 12 March 1983 to on or about 11 June 1983. 7. On 22 June 1983 the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions if this request was approved, and of the procedures and rights available to him. Following this consultation, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separation-Enlisted Personnel), chapter 10, for the good of the service-in lieu of court-martial. He made the following acknowledgements in his request: a. He acknowledged he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person. He further acknowledged he understood the elements of the offense(s) charged and he was guilty of the charge(s) against him or of (a) lesser included offense(s) which also authorized the imposition of a bad conduct or dishonorable discharge. b. He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his behalf. He elected not provide a statement. 8. On 7 July 1983, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, Chapter 10 and ordered the issuance of an uncharacterized entry level separation. 9. The applicant was discharged on 19 July 1983, under AR 635-200, Chapter 10, for the good of the service - in lieu of court-martial in the rank/grade of private (PV1)/E-1. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his character of service was entry level status. This form also shows he completed 4 months and 11 days of net active service this period with lost time from 19830312- 19830610. 10. Regulatory guidance provided a discharge under other than honorable conditions is normally considered appropriate for Soldiers discharged under the provisions of Army Regulation 635-200, chapter 10. However, when characterization of service under other than honorable conditions is not warranted for a member in entry level status, the separation will be described as an entry level separation. 11. The Board should consider the applicant's petition and his service in accordance with the published equity, injustice, or clemency determination guidance. ? BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and found the evidence of post-service achievement provided by the applicant insufficient in support of a clemency determination. Based on a preponderance of evidence, the Board determined the applicant’s entry level status discharge 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. AR 635-200 (Personnel Separations-Enlisted Personnel), effective 1 October 1982, and in effect at the time of the applicant's separation, set policies, standards, and procedures for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states a general discharge is a separation form the Army under honorable conditions. When authorized, it is issued to a member whose record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c states a separation under other than honorable conditions is an administrative separation from the service under conditions other than honorable. d. Paragraph 3-9a states a separation will be described as an entry-level separation if processing is initiated while a member is in an entry level status, except in the following circumstances: (1) Characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. (2) The Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority. e. Chapter 10 applied to embers who had committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice (UCMJ) and the Manual of Court-Martial, 1969 (Rev), included a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request could be submitted after court-martial charges were preferred against the member. (1) Paragraph 10-2 states commanders will ensure that a member will not be coerced into submitting a request for discharge for the good of the service. After receiving counseling from consulting counsel, the member may elect to submit a request for discharge for the good of the service. The member will sign a written request certifying they were counseled, they understood their rights, they may receive a discharge under other than honorable conditions, and they understood the adverse nature of such a discharge and the possible consequences. (2) Paragraph 10-8 provided, an under other than honorable discharge certificate was normally considered appropriate for a member who was discharged for the good of the service. However, the separation authority may direct a general discharge certificate if such was warranted by the members overall record during the current enlistment. (3) Paragraph 10-8 also provided, when characterization of service under other than honorable conditions is not warranted for a member in entry level status, the separation will be described as an entry level separation. f. Glossary: Entry-level status - The first 180 days of continuous active military service. For the purpose of characterization of service or description of separation, the member's status is determined by the date of notification to the member as to the initiation of separation proceedings. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service 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 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. 4. Army Regulation 15-185 (ABCMR), paragraph 2-11, states 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003451 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1