ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 September 2019 DOCKET NUMBER: AR20170009787 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2003085970 on 6 May 2003. 2. The applicant states he was acting under the need to protect his family, which in turn led him to go absent without leave (AWOL. He needed to return his family to his home state because his pay was inadequate to sustain proper living conditions. Upon returning his family to his home state, he immediately turned himself in and returned to his duty station. He was charged with being AWOL, stripped of his rank, and discharged. He was just trying to protect his family when his chain of command failed in assisting them. 3. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 12 March 1999. b. He accepted nonjudicial punishment on/for: * 24 November 1999, for failing to go at the time prescribed to his appointed place of duty on three occasions; his punishment included reduction to private (PVT)/E-1 * 14 March 2000, for being AWOL from 10 December 1999 to 3 January 2000, his punishment included reduction to PVT/E-1 c. On 26 July 2000, his immediate commander notified him of his intent to separate the applicant for a pattern of misconduct. The reason for his proposed separation was the applicant failing to be at his appointed place of duty on numerous occasions and being AWOL. The commander recommended he receive an under other than honorable conditions discharge. d. The applicant acknowledged receipt of the commander’s notification on 26 July 2000. e. On 11 August 2000, after consulting with counsel, the applicant requested consideration of his case by an administrative separation board. He also requested a personal appearance before that same board and requested counsel representation at the board. He understood: * he may expect to encounter substantial prejudice in civilian life if an other than honorable conditions discharge was issued to him * as a result of an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he may apply to the Army Discharge Review Board f. On 14 August 2000, the applicant’s immediate commander initiated action to separate him under the provisions of chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). g. On 11 September 2000, the applicant was notified of his requirement to appear before a board of officers on 29 September 2000. h. On 19 September 2000, the applicant submitted an unconditional waiver of his administrative separation board. He had been previously advised of his rights and the long-term consequences of a discharge under other than honorable conditions. i. Consistent with the chain of command recommendations, on 27 September 2000, the separation approval authority approved the applicant’s discharge under the provisions of chapter 14, AR 635-200, paragraph 14-12c for commission of a serious offense and characterized his service as under other than honorable conditions. j. On 29 September 2000, the applicant was discharged from active duty under the provisions of chapter 14, AR 635-200, paragraph 14-12c for misconduct. His service was characterized as under other than honorable conditions. 4. On 26 February 2003, the Army Discharge Review Board reviewed his discharge and found it proper. That board denied his request for an upgrade of his discharge. 5. By regulation, action will be taken to separate a Soldier for misconduct when it is clearly established that despite to rehabilitate or develop him/her as a satisfactory Soldier, further effort is likely to succeed. Soldiers are subject to action for a pattern of misconduct or commission of a serious military or civil offense (if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or closely related offense). A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under chapter 14. 6. 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 relief was not warranted. Based upon the short term of honorable service completed prior to a pattern of misconduct, which included a lengthy AWOL offense, as well as a lack of post-service character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, the Board concluded that the characterization of service received at the time of separation was appropriate. 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. 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 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 14 of that regulation covers separation for Soldiers for misconduct. It states action will be taken to separate a Soldier for misconduct when it is clearly established that despite to rehabilitate or develop him/her as a satisfactory Soldier, further effort is likely to succeed. Soldiers are subject to action for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or closely related offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under chapter 14. 2. 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) AR20170009787 4 1