ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 28 October 2019 DOCKET NUMBER: AR20170005513 APPLICANT REQUESTS: upgrade of his discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from the Bay County Veterans Service * Department of Veterans Affairs St. Petersburg Regional Office * DD 214 (Certificate of Release or Discharge from Active duty) 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. 2. The applicant states, he was faithful throughout his time in service, until this incident. He was very young and having marital problems. He states, he went to his first sergeant to discuss his issues. He basically informed him to forget about his marital issues, he was in the Army now. At that point, he was extremely upset and just didn't report to duty for approximately 2 months. 3. The applicant provided: * Letter from the Bay County Veterans Service informing the agency what the applicant submitted to support his case * Letter from the Department of Veterans Affairs St. Petersburg Regional Office informing the applicant he did not qualify for any benefits * DD 214 (Certificate of Release or Discharge from Active duty) period ending 16 September 1998 4. A review of the applicant service record shows: a. He enlisted in the Regular Army on 24 January 1995. b. His DD Form 458 (Charge Sheet) dated 27 May 1998 shows he was charged with two specification of (AWOL) from 17 March 1998 to 24 March 1998 and from 26 March 1998 to 15 May 1998. c. On 28 May 1998, he consulted with legal counsel. Counsel advised him of the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request for discharge, he acknowledged: * he was making the request of his own free will and he had not been subjected to any coercion * by submitting this request he was acknowledging he was guilty of the charge(s) against him or a lesser included offense * he understood that if the discharge request was accepted he could be furnished an under other than honorable discharge * he understood if such a discharge 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 * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * have been advised that he may submit any statements he desire in his behalf, which will accompany his request for discharge. Statements in his own behalf were not submitted with this request * he hereby acknowledge receipt of a copy of this request for discharge and of all enclosures submitted herewith. * he does not desire a physical evaluation prior to separation d. On 17 August 1998, the company commander recommended approval of the applicant request for discharge for the good of the service and recommended he receive an other than honorable discharge. The commander stated the Soldier has become disillusioned with the military. Retention of this individual is not in the best interest of the Army. e. Consistent with the chain of command's recommendation, on 26 August 1998 the separation authority approved the applicant’s request for discharge for the good of the service with an under other than honorable conditions discharge. He would be reduced to the lowest enlisted pay grade. f. On 16 September 1998, he was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) show he was discharged under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial) with an under other than honorable conditions characterization of service. He completed 3 years, 5 months, and 26 days of net active service. He had loss time from 17 March 1998 to 23 March 1998 and 26 March 1998 to 14 May 1998. 5. On 11 May 2006, the Army Discharge Review Board (ADRB), after careful consideration of his military records and all other available evidence, has determined that he was properly discharged. The ADRB denied his request for a change in the type and nature of his discharge. 6. By regulation, members are subject to separation for commission in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized 7. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions 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 periods of AWOL, as well as the failure to provide any post-service character evidence to show that the applicant had learned and grown from the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. 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 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, provides 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 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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 -12(c) (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. 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 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) AR20170005513 5 1