ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  6 July 2021 DOCKET NUMBER:  AR20210008773 


APPLICANT REQUESTS:  In effect, his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States), dated 16 November 2020

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 16 November 2020

.self-authored statement, dated 16 November 2020

.DD Form 4 (Enlistment/ Reenlistment Document – Armed Forces of the UnitedStates), dated 10 January 1991

.DA Form 2-1 (Personnel Qualification Record – Part II), illegible

.DA Form 4980-18 (Army Achievement Medal (AAM) Certificate), dated 18 June1992

.DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 31 October 1994

.Kellogg Brown and Root (KBR) Certificate of Appreciation for civilian serviceduring Operation Iraqi Freedom (OIF), dated 16 July 2009

.Department of Veterans Affairs (VA), Veterans Service Center, AdministrativeDecision Letter, dated 19 August 2009

.Ashworth College Carpentry Diploma, dated 24 January 2014

.Little Rock, Arkansas Business License for 2020, with an Arkansas Secretary ofState Certificate of Good Standing, dated 1 July 2020

.VA Administrative Decision Letter, dated 21 October 2020

.two character reference letters, dated 16 and 17 November 2020



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, in effect:

a.He enlisted in the Army on 24 January 1991 for a four-year enlistment and wascertified as 88M Motor Transport Operator.  During his enlistment, he did not have any infractions for conduct or any other violations.  He was offered an early out discharge as part of the convenience of the government during the last quarter of his enlistment, after completing nearly 95 percent of his service obligation.  He accepted the early out but did not execute the formal out processing protocols. 

b.He was at home awaiting final paperwork for his early release offer, when hereceived a call informing him that he was absent without leave (AWOL).  He immediately returned to base and was told paperwork had already been submitted through the chain of command and there were no further actions available for his continued service.  The other than honorable discharge has been unfavorable for civilian job opportunities and VA benefits.  He is aware that the approximately 90 days that remained for him to complete his commitment has limited his opportunity for future enlistments and for benefits for him and his family. 

c.Since being discharged, he has been a productive citizen, with continuousemployment and upstanding character.  He has a commercial driver's license, completed trade school in carpentry from Ashworth College, and started his carpentry business in March 2013.  He has not had any legal issues and has continued to use his military training to serve with a Department of Defense (DoD) contractor in 2008, 2011, and 2018; he served in lraq and Afghanistan for three years, which required a security clearance.  He enjoyed his time as a Soldier and his experiences during active duty.  His discharge has resulted in ongoing feelings of guilt about his remaining time to serve. Thus when the opportunity presented itself he did not hesitate serving contract after contract trying to repay the debt he left on the table in 1994.   

d.As an independent contractor and business owner, he has learned theimportance of integrity and follow through.  He acknowledges he was wrong, regardless of his lack of knowledge or protocol in opting out of the Army without completing his four year commitment.  The details of early discharge were his responsibility and he failed to inquire and/or complete the process in a timely manner.  The hardship of his discharge outweighs most adversities he has encountered.  He offers a formal apology and takes full responsibility for his actions. 

3.The applicant enlisted in the Regular Army on 24 January 1991.  He enlisted for fouryears with an established expiration term of service (ETS) date of 23 January 1995.

4.The applicant’s service records contains the following documentation:

a.Two DA Forms 4187-E (Personnel Action), showing his duty status was changedfrom present for duty to AWOL, on or about 23 December 1992, and from AWOL to present for duty on or about 27 December 1992. 

b.A bar to reenlistment was initiated against the applicant on or about 13 April1994.  The relevant DA Form 4126-R (Bar to Reenlistment Certificate), was approved on 15 May 1994, and lists the following as reasons for the bar: 

.the applicant's receipt of non-judicial punishment (NJP) on 8 April 1994, underthe provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), forfailing to be at his appointed place of duty

.seven instances of failing to pay just debts

.his commander further stated the applicant’s failure to pay just debts and hisArticle 15 for failure to be at the appointed place of duty indicated he was notsuitable for further military service



c.Two other DA Forms 4187-E, showing his duty status was changed from presentfor duty to AWOL, on or about 11 July 1994 from Fort Hood, TX, and from dropped from unit rolls to present for duty on or about 7 September 1994, when he surrendered to military authorities at Fort Sill, OK. 

5.Court-martial charges were preferred against the applicant on 7 September 1994, forviolations 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 11 July1994 through on or about 7 September 1994.

6.The applicant consulted with legal counsel on or about 12 September 1994, and wasadvised of the basis for the contemplated trial by court-martial; the maximumpermissible punishment authorized under the UCMJ; the possible effects of a UOTHCdischarge; and the procedures and rights that were available to him.

a.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service.  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 VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

b.He further understood that there were no automatic up grading nor review by aGovernment agency of a less than honorable discharge and that he must apply to either the Army Discharge Review Board (ADRB) or the ABCMR if he wished for a review of his discharge.  He realized that the act of consideration by either board did not imply that his discharge would be upgraded. 

c.He elected not to submit a statement in his own behalf, and not to undergoseparation examination. 

7.The applicant was placed in an involuntary excess leave status on 12 September1994, without pay, leave accrual, or allowances.  Additionally, he acknowledged hisunderstanding that there was no entitlement to disability retirement incurred during aperiod of excess leave.

8.The applicant’s commander recommended approval of his request for discharge on6 October 1994, under the provisions of Army Regulation 635-200, Chapter 10, for thegood of the service – in lieu of trial by court-martial, with a UOTHC discharge.

9.The Fort Sill Criminal Law Division reviewed the applicants request and found nolegal objections on 12 October 1994.

10.The separation authority approved the applicant's request for discharge on13 October 1994, under the provisions of Army Regulation 635-200, Chapter 10, anddirected his reduction to the lowest enlisted grade and the issuance of a UOTHCdischarge.

11.The applicant was discharged on 31 October 1994, under the provisions of ArmyRegulation 635-200, Chapter 10, in lieu of trial by court-martial.  The DD Form 214, hewas issued confirms he was discharged in the lowest enlisted grade and his servicewas characterized as UOTHC.   He was credited with completing three years, sevenmonths, and eleven days of net active service.

12.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial.

13.The applicant does not provide and his service record does not support hiscontention that he was offered an early out with 90 days remaining on his contract.When the applicant was listed as AWOL on 11 July 1994, he had 196 days remainingon his contract [six months and 12 days], as his established ETS was 23 January 1995.

14.The applicant petitioned the Army Discharge Review Board (ADRB) for an upgradeof his discharge.  After careful review and consideration on 28 February 2008, theADRB found his discharge was both proper and equitable and denied his petition forrelief.

15.The applicant provides the following for consideration:

.an excerpt of his service records detailed above, including an AAM

.a KBR certificate of appreciation for his civilian service in Iraq

.a Veterans Service Center decision letter denying his entitlements to VA benefits

.his carpentry diploma, business license and Certificate of Good Standing

.a VA decision letter, granting him entitlements to VA benefits, and consideringhis service as “Honorable for the purpose of VA benefits eligibility”

.two reference letters attesting to his character



16.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, and clemency determination guidance.

BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found that some relief was warranted.  The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD 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.  Based upon a preponderance of evidence, post-service achievements, letters of support, and guidance for consideration of discharge upgrade requests, the Board determined that the character of service the applicant received upon separation should be corrected as a matter of clemency. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : GRANT FULL RELIEF 

:XX :XX GRANT PARTIAL RELIEF 

: : GRANT FORMAL HEARING 

: :XX : : : : DENY APPLICATION 

BOARD DETERMINATION/RECOMMENDATION: 

1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief.  As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by reissuinghim a DD Form 214 for the period ending 31 October 1994 showing the character ofservice as Under Honorable Conditions (General).

2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to upgrading the characterization of his discharge toHonorable.





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, USC, Section 1552(b), provides that applications for correction of militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.
2.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  The version in effect at the time provided that:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c.Chapter 10, in effect at the time, provided that a member who committed anoffense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UOTHC discharge was normally considered appropriate. 

3.The Under Secretary of Defense for Personnel and Readiness issued guidance toService Discharge Review Boards (DRB) and Service Boards for Correction ofMilitary/Naval Records (BCM/NR) on 25 July 2018, regarding equity, injustice, orclemency determinations.  Clemency generally refers to relief specifically granted from acriminal 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, whichmay be warranted on equity or relief from injustice grounds.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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 ofservice 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. 

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