ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: 20170001750 APPLICANT REQUESTS: an upgrade of his under other than honorable condition discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) 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 wants to be able to alleviate the stigma given under such a discharge and to receive veteran benefits and other services. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 29 March 2001. b. On 15 February 2002, the applicant was reported absent without leave (AWOL), and on 17 March 2002, he was dropped from rolls (DFR). He ultimately returned to military control on 17 April 2002. c. On 23 April 2002, he accepted nonjudicial punishment for absenting himself from his place of duty. d. On 25 April 2002, court martial charges were preferred against the applicant for one specification of desertion from on or about 15 February 2002 to 17 April 2002. e. After consulting with legal counsel, the applicant requested discharge from the Army in lieu of trial by court-martial in accordance with chapter 10 of the Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel). He acknowledged: * he was making this request of his own free will and had not been subject to any coercion whatsoever by any person * by submitting this request for discharge, he understood the elements of the offense charged and he is guilty of the charge against him * he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service * as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law * he understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge f. On 26 April 2002, the separation authority approved the discharge action under the provisions of Chapter 10, AR 635-200 chapter 10, in lieu of trial by court martial and directed that he be discharged under other than honorable conditions. g. On 17 May 2002, the applicant was discharged. 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, In lieu of trial by court-martial, his service was characterized as under other than honorable conditions and he was reduced to the lowest enlisted rank. He completed 11 months and 18 days of active service with lost time from 15 February 2002 to 16 April 2002. 4. On 27 February 2008, the Army Discharge Review Board reviewed his case and denied his request for upgrade. 5. By regulation, 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. A discharge under other than honorable conditions is normally considered appropriate. 6. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the relatively short term of service completed prior to a multiple AWOL offenses, one be extended in length, as well as a lack of character evidence to show that the applicant has learned and grown from the events leading to discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX XX XX 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. 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 (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 (Honorable Discharge) provides that 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. When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. Paragraph 3-7b (General Discharge) 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. 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. 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 or 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. ABCMR Record of Proceedings (cont) 20170001750 5 1