`IN THE CASE OF: BOARD DATE: 12 January 2021 DOCKET NUMBER: AR20200003412 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 20 January 2020 * self-authored statement, dated 31 January 2020 * two character reference letters, dated 24 January 2020 * spouse's character reference letter, dated 31 January 2020 * personal letter of reference, dated 4 February 2020 * son's character reference letter, dated 11 February 2020 * coworker's character reference letter (undated) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), 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 joined the Army because he wanted to do something none of his friends had done and because he wanted to make a difference within his community. He chose the Army because he had family that were active duty and he admired their structure and determination to get things done. b. He was a combat medic while he was in the Army and it was a job that he truly enjoyed doing because it gave him the opportunity to help people in need. It also gave him experience in the medical field, which he desired. He was doing a job he enjoyed and did very well based on the opinions of his fellow Soldiers. c. He experienced some really tough times and he often felt alone when he needed someone. There was no one around he could rely on during a time when he got sick. He was diagnosed with asthma and he started receiving treatments. At times, he was accused of being in places he was not supposed to be in and other things. He had many occurrences and he felt misused. He was often sent on details and he found out later there was supposed to have been a noncommissioned officer (NCO) there and not a private first class, which was his rank at the time. On one occasion, he was supposed to return home because he was scheduled to be in civilian court for a traffic ticket and he was unable to go, due to being sent on a detail that he was not supposed to be on. As a result, his license was suspended, which created many issues such as not being able to take care of his family. The blatant mistreatment and disrespect felt overwhelming and it caused him to lose focus and to make some bad decisions. He had never been in any trouble and the whole situation made him feel alone. d. As a result of his feelings, he decided to leave without notice. It was a decision he wholeheartedly regrets and he has learned from his poor decisions. Over the years, he has learned not to let any issues cause him to make unwise decisions. He now realizes it is best to just face any issues he has. His experience in the Army, good, bad, or indifferent has made him a very strong person and it has given him the courage to take anything that comes his way. He truly feels bad because he let some issues cause him to lose focus and not to complete his mission. e. He is currently a welder and an active volunteer in his community. He enjoys helping others with whatever they need. He most enjoys helping the elderly because he believes they have paved the way for this great nation. He believes that he is making a difference in the communities that he visits. 3. The applicant enlisted in the Regular Army on 10 January 1997. He completed training in military occupation specialty 91B (Medical Specialist). 4. The applicant was assigned to Company B, 28th Combat Support Hospital, when he went absent without leave (AWOL) on 8 April 1999. His DA Form 4187 (Personnel Action), dated 27 May 1999, shows his duty status changed from AWOL to dropped from the rolls as a deserter on 9 May 1999. The Remarks section of his DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 9 June 1999, shows his company commander noted that the suspected reason he went AWOL was that he did not wish to be placed on jump status in the 82nd Airborne Division. The applicant voiced his concern to the platoon sergeant and squad leader. He then stated that he had considered his service obligations and decided to do the right thing and report to the 82nd Airborne Division. 5. A DD Form 616 (Report of Return of Absentee) shows the applicant was apprehended by civilian authorities in Atlanta, Georgia, and returned to military control on 27 October 1999. 6. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 8 April 1999 until on or about 27 October 1999. 7. The applicant consulted with legal counsel on or about 5 November 1999. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was 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 own behalf. His request shows he elected not to submit a statement. 8. The separation authority approved the applicant's request for discharge on 7 November 2000 and directed his reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 9. The applicant was discharged on 14 December 2000, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court- martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged in the lowest enlisted grade and he was issued a UOTHC discharge. 10. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. The applicant provides six character reference letters from family members, friends, and coworkers attesting to his good character and post-service conduct. 12. The Board should consider the applicant's statement and his supporting documents in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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. 2. The Board found the character reference letters provided by the applicant to be compelling evidence in support of a clemency determination. Based on a preponderance of evidence, the Board determined the applicant's character of service should be changed to under honorable conditions (general). This relief will entail restoration of his rank/grade to private first class/E-3 as the basis for his reduction in grade was the original character of service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 his DD Form 214 to show in: * item 4a – PFC * item 4b – E-3 * item 12h – 1998 01 10 * item 24 – under honorable conditions (general) 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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. c. Chapter 10 provided that a member who had 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. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge would normally be furnished to an individual who was discharged for the good of the service. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 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, 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) AR20200003412 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200003412 6 ABCMR Record of Proceedings (cont) AR20200003412 5