IN THE CASE OF: BOARD DATE: 15 October 2009 DOCKET NUMBER: AR20090009525 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his under other than honorable discharge to fully honorable and correction of his rank/grade private (PVT)/E-1 to specialist (SPC)/E-4. He also requests a personal hearing. 2. The applicant states that he was not properly notified that his unit was called up to active duty. He adds that he requested to be discharged with an honorable discharge and that an under honorable conditions (general) discharge was approved prior to his discharge. He also adds that he served with honor for over 6 years through troubled times and while under a family hardship, pressure, and stress when others would not serve 1 day and remained loyal to his country. 3. The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 31 March 1989 and 21 February 1992; a self-authored statement, dated 10 May 2009; a copy of a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 11 May 2009; a copy of his resume; a copy of his separation packet; and copies of various DA Forms 2496 (Disposition Form), hand-written notes and letters, Optional Forms 41 (Routing and Transmittal Slip), financial statements, special power of attorney, attachment orders, reassignments orders, medical statements, letters of recommendation, letters of support, certificates of training, certificates of achievement, letters of commendation, diplomas, transcripts, test scores, and college registration forms, dated on various dates during his military service, in support of his request. CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's records show he enlisted in the Regular Army (RA) for a period of 4 years on 1 April 1985. He completed basic combat and advanced individual training and was awarded military occupational specialty 63W (Wheeled Vehicle Mechanic). 3. The applicant's records also show he served in Germany from on or about 31 August 1985 to on or about 8 August 1988. His records further show he was awarded the Army Good Conduct Medal, the Army Service Ribbon, the Overseas Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Driver and Mechanic Badge with Driver-W Clasp. 4. The applicant's records further show that on or about 6 April 1988 he was authorized 30 days of emergency leave due to the illness of his son. Furthermore, upon arrival in the United States, he was attached to the U.S. Army Recruiting Battalion, Lansing, MI, pending a compassionate reassignment and that he was ultimately reassigned to Fort Knox, KY, in August 1988. 5. The applicant's records further show he was honorably released from active duty in the rank/grade of SPC/E-4 on 31 March 1989 by reason of expiration of his term of service. The DD Form 214 he was issued shows he completed 4 years of creditable active service. 6. The applicant's records also show he enlisted in the Michigan Army National Guard (MIARNG) in the rank/grade of SPC/E-4 for a period of 6 years on 1 April 1989. In connection with this enlistment, the applicant elected a cash enlistment bonus and agreed that while in this status and as a member of the Army National Guard (ARNG) he would attend at least 48 unit training assemblies (UTA) [drills] per year and satisfactorily complete one period of annual training of not less than 15 days per year. He was initially assigned to the 1070th Maintenance Company (Direct Support), Lansing, MI; however, he was transferred in January 1990 to the 1072nd Maintenance Company (Direct Support), Lansing, MI. He also agreed that if there was a change of residence to a location too distant to permit his participation with his unit, he should apply for an inter-State transfer. 7. On 15 November 1989, the applicant's immediate commander notified the applicant by certified/registered mail that he was absent from the scheduled UTA or multiple unit training assemblies (MUTA) on 12 November 1989. The immediate commander notified the applicant that an accumulation of nine unexcused absences within 1 year would declare him an unsatisfactory participant. He was also provided an opportunity to explain and/or provide justification for the unexcused period of absence. The certified mail receipt shows the applicant received delivery and accepted receipt of this letter. In his response, the applicant acknowledged his absence and stated that he had car trouble. 8. On 15 March 1990, the applicant's immediate commander again notified the applicant by certified/registered mail that he was absent from the scheduled UTA/MUTA on 10 and 11 March 1990. The immediate commander notified the applicant that an accumulation of nine unexcused absences within 1 year would declare him an unsatisfactory participant. He was also provided an opportunity to explain and/or provide justification for the unexcused period of absence. The certified mail receipt shows the applicant received delivery and accepted receipt of this letter; however, he failed to respond. 9. On 5 November 1990, the applicant's immediate commander notified the applicant by certified/registered mail that he was absent from the scheduled UTA/MUTA on 3 and 4 November 1990. The immediate commander notified the applicant that an accumulation of nine unexcused absences within 1 year would declare him an unsatisfactory participant. He was also provided an opportunity to explain and/or provide justification for the unexcused period of absence. The certified mail receipt shows the applicant received delivery and accepted receipt of this letter; however, he again failed to respond. 10. On 26 December 1990, the applicant's immediate commander initiated separation action against the applicant by reason of misconduct. He indicated that the applicant had accrued 12 unexcused absences with a period of 1 year. 11. On 29 December 1990, Headquarters, 4th U.S. Army, Fort Sheridan, IL, published Permanent Orders 146-2, ordering the 1072nd Maintenance Company to active duty effective 7 January 1991 for a period of 180 days. 12. On 7 January 1991, by direction of the President and pursuant to Title 10, U.S. Code, section 637b, the 1072nd Maintenance Company and all its members were ordered to active duty for a period of 180 days effective 7 January 1991. 13. On 10 January 1991, the applicant was reported in an absent without leave (AWOL) status and on 14 January 1991 he was dropped from the Army rolls. His record contains a statement authored by his immediate commander on what appears to be 18 January 1991 in which the commander stated that: a. the applicant has had problems attending drills in the past and that he was transferred from the 1070th Maintenance Company to the 1072nd Maintenance Company as a second chance. He attended drills for a few months and then he called his senior sergeant and informed him he was thinking of requesting a discharge from the ARNG for personal and religious reasons, but never submitted any paperwork; b. the applicant was sent registered mail and signed for the letters, but failed to contact his unit. A 45-day warning was sent to him on 16 November 1990 and it was returned unanswered. Just before the unit was going to send in the paperwork to request his separation for misconduct, the unit was ordered to active duty; and c. the immediate commander and two other sergeants were able to contact the applicant when they had someone contact the Flint Police Department, Flint, MI, and left a message for the applicant to contact the immediate commander. The applicant actually called and talked to the immediate commander who read him the mobilization order and told him he needed to stay in touch with the unit. The applicant agreed. 14. On 18 October 1991, the applicant was apprehended by civilian authorities in Flint, MI, for the civilian charge of possession of a concealed weapon. He was confined at the Hennessey County Jail, Flint, MI, pending trial. 15. On 11 December 1991, the applicant appeared before the County Court in Flint, MI, and was placed on a 1-year probation. He subsequently returned to military control at Fort Knox, KY. 16. On 20 December 1991, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 10 January 1991 through on or about 11 December 1991. 17. On 20 December 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations). 18. In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions. He further indicated that "I knowingly, willingly, and voluntarily declare that I was absent without leave from the U.S. Army from 10 January 1991 to 11 December 1991" and "I make this admission for administrative purposes only so I may process out of the Army and realize in doing so I may be given an under other than honorable conditions discharge." He acknowledged he understood that if the discharge request was approved, he could be discharged under conditions which are other than honorable and as a result could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. He also submitted a statement on his own behalf in which he stated that he was unaware that his unit had mobilized; that he had been working in Denver, CO; and that he did not receive any legal documents concerning the change of his status to active service. 19. On 30 December 1991, the applicant's immediate commander recommended approval of the applicant's separation with an under other than honorable conditions discharge. The immediate commander remarked that the applicant's conduct had rendered him triable by court-martial under circumstances that could lead to a bad conduct discharge or a dishonorable discharge. Based on his previous record, punishment was expected to have had a minimal rehabilitative effect and his discharge was in the best interest of the Army. 20. On 10 January 1992, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and be reduced the lowest enlisted grade. 21. On 13 January 1992, Headquarters, U.S. Army Personnel Control Facility, Fort Knox, KY, published Orders 8-2 directing the applicant's reduction from SPC/E-4 to PVT/E-1 effective 10 January 1992. 22. On 21 February 1992, the applicant was accordingly discharged. The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions. Items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) show the entries PV1 and E-1 respectively. This form also confirms the applicant had completed 2 months and 11 days of creditable active military service and had 330 days of lost time. 23. On 14 March 1992, the MIARNG published Orders 053-070, ordering the applicant's discharge from the ARNG effective 21 February 1992 with an under other than honorable conditions character of service. The National Guard Bureau Form 22 (Report of Separation and Record of Service) he was issued shows he was discharged in accordance with paragraph 8-27e (discharge in lieu of a court-martial) of National Guard Regulation 600-200 (Enlisted Personnel Management) with a character of service under other than honorable conditions. 24. There is no indication in the applicant's records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 25. The applicant submitted the following documents in support of his request: a. A self-authored statement, dated 10 May 2009, in which he describes his enlistment in the Army, service in Europe, awards and decorations, and overall achievements. He then describes his marriage and subsequent reunion with his wife in Europe, their financial difficulties in Germany, as well as the stress associated with his son's medical condition that led to his eventual compassionate reassignment to the Recruiting Battalion in Lansing, MI. He also states that while going through these hardships, his unit did not give him any support or counseling, even when his son died. Nevertheless, despite all the hardships, he decided to enlist in the MIARNG after his release from active duty. His problems got even worse after his enlistment due to medical bills, stress, and lack of employment in his State. He adds that he told his unit he was leaving the State for a better job market and that it may have been during this period that his unit was trying to contact him. He also adds that he did not receive any mail or phone messages of the change in his status and only learned of his AWOL when he was in police custody. He was eventually transferred to Fort Knox, KY, and requested a discharge for the good of the service and that the discharge was approved due to his hardships. However, he requested an honorable or a general discharge because he had completed over 6 years of service to his country when many did not even serve. He concludes that he would like to redeem his name by upgrading his discharge to fully honorable. b. A VA Form 21-4138, dated 11 May 2009, in which he again chronicles his military service and states that he is deserving of the benefits or awards for veterans who served their country. He also restates the family hardships he encountered during his service and the lack of employment after his release from active duty. He adds that he left Michigan in search of a better job around the same time his unit was ordered to active duty. However, he was neither informed by mail nor by phone about the change of his status. He also adds that he was not found at fault while at Fort Knox, KY, as he had over 6 years of military service with no disciplinary action against him. He then requested to be honorably discharged so he could stay with his family. He concludes that he is an honorable man to his family, friends, and country. c. Several personal and medical statements, dated on various dates in 1988, that show his son suffered a life-threatening cancer of the liver and that despite his surgery, he had some residual disease. d. Certificates of training showing completion of basic combat and advanced individual training, the Centralized In-processing and Community Orientation Program, and the Basic Skills English Program. e. A letter of commendation for completing the Hand Grenade Assault Course, a certificate of achievement for qualifying expert with the Hand Grenade, and a certificate of achievement for supporting his unit during Black History month. f. Several skills test certificates, diplomas, test scores, and transcripts. g. Several letters of recommendation and/or character reference letters from friends, coworkers, pastors, and family members, dated on various dates in 2002, in which the authors essentially describe the applicant as a dedicated, responsible, hardworking, loving, kind, and family-oriented man. He is also described as a great asset to his community and profession. 26. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 27. Army Regulation 635-200, paragraph 3-7a, provides that 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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate. 28. Army Regulation 635-200, paragraph 3-7b, provides that 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 the Soldier's separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his under other than honorable discharge should be upgraded to fully honorable and that his rank/grade should be corrected from PVT/E-1 to SPC/E-4. He also requests a hearing in person. 2. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, it is concluded that the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. The evidence of record shows that the applicant enlisted in the RA on 1 April 1985 and was subsequently reassigned to Germany. During his overseas tour, he encountered medical problems related to his son's illness. He was initially placed on emergency leave and was subsequently reassigned to Fort Knox, KY, for compassionate reasons. He was honorably released from active duty on 31 March 1989 by reason of expiration of his term of service. 4. The evidence of record further shows that the applicant voluntarily enlisted in the MIARNG on 1 April 1989. He was required to attend all scheduled UTA/MUTA and/or annual training periods. He chose not to. According to the notification letters and as the applicant was aware, he was advised that if he accumulated a specified number of unexcused absences within 1 year, he could be discharged for misconduct. He received the certified letters, but he elected not to comply with his contractual agreement. Accordingly, his immediate commander initiated elimination action against him. 5. During the separation process, the applicant's unit was ordered to active duty. As a member of that unit, he had a requirement to report as directed. Contrary to his contention that no one notified him, the immediate commander certified that he personally read him the mobilization order. The applicant chose to ignore it. He was reported AWOL by his chain of command. 6. The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, when the separation authority approved the applicant's voluntary discharge, he directed his reduction to the lowest enlisted grade which is correctly shown on his DD Form 214. 7. The applicant's honorable service and achievements during his first enlistment as well as the hardships associated with his son's illness are noted. However, he was provided with support by his chain of command and the Army in the form of emergency leave and a subsequent compassionate reassignment. There is no evidence that his subsequent lengthy absence and/or failure to show up for his UTA/MUTA were a result of his previous difficulties. 8. The applicant's contention that local unemployment forced him to relocate to another state is also noted. However, there is no evidence of record and the applicant did not provide convincing evidence which shows he had made a special arrangement with his chain of command regarding his whereabouts or that he requested an inter-State transfer. 9. In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to either a general or an honorable discharge. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________X______________ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20090009525 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090009525 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1