ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170006146 APPLICANT REQUESTS: an upgrade of his under other than honorable condition discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 there was no error or injustice in his records. He is requesting an upgrade of his discharge from under other than honorable condition to honorable. All actions taken by the U.S. Army were correct and justified. He was guilty of all charges brought against him while in the military. The U.S. Army was correct in their decision to discharge based on his actions as a Soldier and assumes full responsibility. He has taken actions to repair the mistakes of his past. He has learned through family and his church to become the man he should have been while in the military. He is requesting this upgrade to increase the livelihood of family and children in the work force. The mistakes he made while in the military were the worst mistakes he has made in life. He thanks the Board for their consideration of his application. 3. The applicant’s service records shows: a. He enlisted in the Regular Army on 30 December 1998. b. On 27 May 2000 he absented himself without leave (AWOL). He was dropped from the rolls (DFR) and reported as a deserter effective 27 June 2000. c. His initial DD Form 458 (Charge Sheet) shows he was charged with one specification of absenting himself from his unit without authority (AWOL) and with the intent of remaining so permanently. d. On 12 February 2001, he was apprehended by civilian authorities in Spring Lake, NC. On 14 February 2001, he was transferred to the Special Processing Company, U.S. Army Personnel Control Facility at Fort Knox, KY. f. On 21 February 2001, court-martial charges were preferred against the applicant. His Charge Sheet shows he was charged with one specification of AWOL from 27 May 2000 to 12 February 2001. g. On 21 February 2001, he consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel Separations), chapter 10. In his request, he acknowledged: * maximum punishment * he was guilty of the charge against him or of a lesser included offense * he understood if his discharge was accepted she could be separated with an under other than honorable conditions discharge and furnished an Other Than Honorable Discharge Certificate * he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the Veterans Administration and benefits of a Veteran under Federal and State law * he was advised he could submit any statements he desired in his own behalf * his election shows he elected not to submit a statement f. On 13 December 2001, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial. The separation authority directed issuance of an Under Other Than Honorable Discharge Certificate and reduction to the lowest enlisted grade. g. On 11 January 2002, the applicant was discharged from active duty under the provisions of AR 635-200, chapter 10 as a private (PVT/E-1). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 3 months, and 21 days of active service with 255 days of lost time. It also shows he was awarded or authorized the Army Service Ribbon. 4. By regulation, a member who committed an offense or offenses the punishment for which includes a bad conduct discharge or dishonorable discharge may submit a request for discharge for the good of the service. An Under Other Than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service. 5. 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 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 accepts responsibility for his actions; however, he did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the lengthy period of AWOL that only ended as a result of apprehension, 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 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) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service general 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 that regulation provides, in pertinent part, that 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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) AR20170006146 4 1