ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  5 August 2019

	DOCKET NUMBER:  AR20160017625


APPLICANT REQUESTS:  an upgrade to his under other than honorable condition discharge to an under honorable conditions (general)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 293 (Applicant for the Review of Discharge from the Armed Forces of the United States)

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 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 he was stationed in Balad, Iraq from March to November 2003.  His cap was given time off and he was given 14 days to come home.,  After being home with his family he could not go back to the situation he was in.  He has anxiety and fear that if he went back he may not make it back home again.  After a year and a half, he returned to Fort Knox, KY.  He spent approximately 40 days at the Personnel Control Facility (PCF) before being released.  He is requesting a general discharge to receive services at the veteran affair medical clinic.  He has nightmares, avoid crowds, rarely go out, and avoid social events.  He was with the 147th Maintenance Company and was with the main support maintenance for the Air base.  He encountered mortars on a daily basis.  He feared for his life and once he was home he did not want to go back.  

3.  The applicant’s record in its entirety is not available for review; it shows:

	a.  He enlisted in the Regular Army on 24 April 2002.  

	b.  A DA Form 4980-14 (Army Commendation Medal (ARCOM) Certificate) shows he was awarded the ARCOM by Permanent Orders 215-68, dated 3 August 2003, for meritorious achievement in support of Operation Iraqi Freedom from 25 February 2003 to 30 May 2003, by Headquarters, 7th Corps Support Group (located in Germany).

	c.  DA Form 4187 (Personnel Action) changed his duty status from:

* ordinary leave to absent without leave (AWOL) on 8 December 2003
* drop from roll (DFR) to attached/present for duty on 10 October 2004; he surrendered to military authorities at Fort Knox, KY

	d.  On 14 October 2004, he consulted with counsel and he 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 an under other than honorable conditions discharge, and the procedures and rights that were available to him.  

	e.  Subsequent to receiving legal counsel, he voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial for being AWOL from 8 December 2003 to 10 October 2004.  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 an undesirable discharge  
* he 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
* he was advised he could submit any statements he desired in his own behalf; he elected not to submit a statements

	f.  His DD for 458 (Charge Sheet), dated 14 October 2004, reflects court-martial charges were preferred against the applicant for one specification of being AWOL from 8 December 2003 to 10 October 2004.

	g.  On 18 November 2004, the applicant’s immediate commander recommended approval to his request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of court martial.

	h.  On 29 November 2004, consistent with the applicant’s request and his chain of command recommendation the separation authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 10, in lieu of court martial and directed that he be reduced to the lowest enlisted grade furnished an under other than honorable conditions discharge.  

	i.  The applicant was discharged on 10 December 2004.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service - in lieu of trial by court martial.  His characterization of service is under other than honorable conditions.  He completed 1 year, 9 months and 10 days of net active service this period with lost time from 8 December 2003 to 9 October 2004.  The DD Form 214 was completed with a temporary record.  His foreign service credit was verified or listed.

4.  The Army Discharge Review Board (ADRB), by letter, 1 March 2013, to the applicant in response to his request for request to change his character and/or reason of his discharge.  The ADRB denied his request and advised the applicant that he may reapply to the ADRB for a personal appearance hearing and/or apply to the ABCMR.   

5.  The Army Review Board Agency (ARBA), by letter, 12 February 2019 responded to the applicant’s request for correction of his discharge character and informed him to provide a copy of his Army military medical record and any other medical documents that support his stated issue.  His case was placed on hold for 30 days awaiting his response and or documents.  The applicant did not response to this request.  

6.  The ARBA Clinical Psychologist completed an advisory opinion on 23 April 2019 that stated that there is insufficient data to opine whether any data mitigates the applicant’s misconduct.  There is insufficient date to opine whether PTSD was present at the time of misconduct.  The paper medical records could be probative to address this question.

7.  By law and AR 635-200, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits.  The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up.  

8.  By regulation 635-200, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge 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.  Soldiers separated under the provisions of this regulation, chapter 10, in lieu of trial by court-martial are assigned the Narrative Reason for Separation as "In Lieu of Trial by Court-Martial."

9.  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:

1.  After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the relatively short term of honorable service completed prior to a lengthy period of AWOL, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

2.  Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant.

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.



ADMINISTRATIVE NOTE(S):

PO 215-68, issued by Headquarters, 7th Corps Support Group, APO AE, dated 3 August 2003 awarded him the ARCOM.  The ARCOM should be added to his DD Form 214.

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.  AR 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 states 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.  Paragraph 3-7b states 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 that regulation provides that a Soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority.  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 if such is merited by the Soldier’s overall record during the current enlistment.

3.  AR 635-5-1, table 2-3 (Separation program designator codes applicable to enlisted personnel), provides that a member who is discharged under the provision of AR 635-200, chapter 10, in lieu of trial by court martial will be assigned the Separation Code KFS.  This Separation Code has a corresponding RE Code of 4.

4.  AR 601-210 (Regular Army and Reserve Enlistment Program), governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army and the U.S. Army Reserve (USAR) for enlistment on or enlistment on or after the effective date of this regulation.  Paragraph 3-8, the RE Code associated with this separation is RE-4 which applies to persons separated from last period of service with a non-waiveable disqualification, ineligible for enlistment.  


5.  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 (BCM/NRs) 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.  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 based on 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.  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)	 AR20160017625


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