ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 June 2019 DOCKET NUMBER: AR20160017083 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) * Four character references * A personal letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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. Although submitted on a DD Form 293, the ABCMR is the proper forum from which applicant may seek relief. 2. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Discharge Review Board in Docket Number AR20110020026 on 30 March 2012. 3. The applicant states: a. He would like an upgrade of his discharge. Even though his discharge was not honorable, he still wore the uniform. He is not looking for a handout, but he would like to obtain some of the benefits veterans receive. He shows some symptoms of depression and post-traumatic stress disorder (PTSD). b. Unfortunately, when he returned from the Middle East, he did what many Soldiers were doing and drank excessively. He was young and leaving the military the way he did was an error in judgment. In the sixteen years since his discharge, he has done many good things and moved up the ladder in his civilian occupations, even going from washing motorcycles for Harley-Davidson to selling them. In 2008, he decided to start working part-time at a drug and alcohol counseling center in Las Vegas. He continues to work there helping people find work and teaching Life Skills Class so juveniles and adults learn to make better decisions. He met a woman and has raised her four kids as his own. The children are all very successful. c. He apologizes for the long-windedness of his letter, but wants the Board to know that he has been a very productive member of society. He would like an upgrade so he can receive benefits and would eventually like to take courses and become licensed so he can help veterans with PTSD. He asks the Board to please consider upgrading his separation. Even though he made poor decisions, he still wore the uniform proudly and served in Kuwait ensuring America’s freedom. 4. The applicant provides: a. A letter from A__ M__ who states that she has known applicant for over twelve years on both a personal and professional basis. He is hard-working, loyal, supportive, and an advocate for those in need. He has always been there for his significant other and her children. He is always there when an extra hand is needed. He is professional and personable and a respected and valued member of the team. b. A letter from applicant’s mother which attests to the strong character of her son. She states he left behind and overcame his youthful errors and immaturity long ago. He works two and three jobs at a time to support his family and is a responsible, mature, sensitive, caring man. c. A letter from D__ D__, the State Director of the counseling and rehabilitation center at which applicant works. She states he is dedicated, honorable, and hard-working. Over his nine years of employment, he has been placed in several high security and high trust positions. Each time he has proven professional, dependable, trustworthy and of high moral character. She has no hesitation in speaking to applicant’s outstanding character. d. A letter from D__ W__ who states she has known applicant for over five years. He is a self-less person who has a way of making people feel as if they were family. He is kind and generous and always there when you need him. He is a great father and provider and also mentors troubled teens. He carries himself like a military man, even though he has been discharged for many years. He is honest to a fault and she cannot think of anything negative to say about him. 5. A review of the applicant’s service record shows: a. He enlisted in the Delayed Entry/Enlistment Program on 21 April 1998 and the Regular Army on 26 May 1998. b. Court-martial charges were preferred against applicant on 10 May 2000 for one specification of absence without leave (AWOL). c. On 12 May 2000, after consulting with legal counsel, he requested a discharge in lieu of trial by courts-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel). He acknowledged: * the maximum punishment included a punitive discharge * if his request for discharge was accepted, he may be discharged under other than honorable conditions * he may be deprived of any or all Army benefits * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life d. Consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge on 6 November 2000. The separation authority directed that applicant be furnished an under other than honorable conditions discharge and that he be reduced to the lowest enlisted grade. e. He was discharged from active duty on 29 November 2000 with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 2 years, 3 months, and 5 days of active service and was awarded the Army Service Ribbon. 6. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 26 March 2013. The ADRB determined after examining the applicant’s record of service and the documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge. 7. On 12 July 2017, the Army Review Boards Agency clinical psychologist rendered an advisory opinion in the processing of this case. He opined: a. Military records indicated the applicant’s early separation from the Army with an under other than honorable conditions discharge was based on his submission of a request for discharge in lieu of court-martial related to an AWOL of 89 days duration. b. A review of available documentation did not reveal evidence of mental health considerations that bear on the character of the discharge in this case. Applicant did not submit any evidence from licensed mental health professionals or other medical providers regarding his mental health. A mitigating nexus between the applicant’s misconduct and his mental health was not discovered. 8. On 17 July 2017, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. He did not respond. 9. By regulation, an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. A discharge under other than honorable conditions normally is appropriate for a Soldier 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 Soldier’s overall record during the current enlistment. 10. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the type of misconduct as well as the character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, the Board agreed to grant clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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 showing his characterization of service as Under Honorable Conditions (General). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to Honorable. 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 military records must be filed within three 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 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 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) 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 (General Discharge) states 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. c. Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge may submit a request for discharge in lieu of trial by court-martial. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of court-martial; however, the separation authority may direct a General Discharge Certificate, if such is merited by the Soldier’s overall record during the current enlistment. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20160017083 2 1