ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 June 2019 DOCKET NUMBER: AR20170010335 APPLICANT REQUESTS: 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) * Brief in support of application for discharge upgrade * Email from spouse * Letter from employer 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 submits this application to upgrade his discharge from under other than honorable to honorable. The instant brief is for this Board's consideration in conducting a records review of the applicant s discharge 3. The applicant provides a legal brief from his counsel who states: a. The applicant continued to serve in the Army at Fort Bragg, NC when his children were deserted by their mother. Following the desertion of the applicant’s mother, the children’s paternal grandmother, took in the children in her absence. However, she required surgery and the applicant was granted emergency leave from 15-24 November 1999 to care for his children while his mother underwent and recovered from surgery. Next, the applicant received permission from leadership to attend a mandatory court appearance in Maryland. He left on 29 November 1999 and was in court on 30 November 1999. He attempted to contact his unit on 30 November 1999 but they had been alerted and gone to the field. He returned on 1 December 1999 reported to the PT (physical training) formation on 2 December 1999. The applicant then went to the field during the week of 13 December 1999 without knowing that he was to be read an Article 15 the next week. During the week of 20 December 1999 his sergeant major read him a field grade Article 15 for being absent with leave (AWOL) on 1 December 1999. He went to JAG (Judge Advocate General) and received Article 15 counseling but was not told when his hearing was scheduled with the commander. b. During this same time his estranged wife alleged to his commanding officer that the applicant had physically abused her. However, the date of the alleged abuse was during a time when the applicant was in the field with his unit. Nevertheless, the applicant was informed that he was to be restricted to base due to this allegation and his Article 15 for being AWOL on 1 December 1999. At approximately this same time, the applicant learned that his estranged wife was attempting to unlawfully take their children out of the country. Unaware of his options and worried about his children the applicant chose to go AWOL from 20 December 1999 to 21 December 1999 and from 29 December 1999 to 15 January 2000 when he voluntarily returned. Based solely on these actions the applicant was discharged on 28 February 2001. The narrative reason for separation was ‘Misconduct' and the applicant received a discharge characterization of under other than honorable condition and a reentry code of 4. In the instant case, that the applicant’s discharge was improper because the Army failed the applicant when his chain of command and the legal office did not provide him information regarding his ability to apply for an emergency transfer or hardship separation. The failure of an Army Judge Advocate General (JAG) to provide proper legal guidance and inform a Soldier of their right to apply for a hardship discharge was a clear violation of Army Regulation (AR) 27-26 (Rules of Professional Conduct for Lawyers), preamble, paragraph 6 and Rule 11. c. In this case the clear legal error of a JAG and the chain of command in not providing proper and reasonable guidance to the applicant interfered with his right to apply for a hardship separation and this error justifies the relief requested in this application. The applicant attempted to use his chain of command and the legal office to address his circumstances and he received improper and inappropriate advice that prevented him from exercising his legal right to apply for a hardship discharge. Applicant’s conduct as a Soldier was in keeping with the standards expected of a young Soldier and was honorable up until a single instance of misconduct. The applicant was well on his way to enjoying a fruitful and honorable Army career before the combination of extremely difficult and seemingly impossible circumstances and errant legal advice combined to lead him to believe he was out of options. At this stage in his life, the applicant has come to realize the value, importance and honor of his military service. With a discharge of under other than honorable conditions the applicant is not entitled to a military funeral and cannot otherwise be recognized for his service. Although he was ultimately responsible for the choices that led to his discharge his youth and the failure of his leadership to provide him with proper guidance were the driving forces behind those decisions. In conclusion, the applicant was the victim of a substantial error by the Army. The applicant was given improper guidance which interfered with a legal right. The applicant attempted to utilize his chain of command and the legal office for help, but was denied proper guidance. The applicant then turned to the only option that made sense at the time which led to him going AWOL and ultimately his discharge from the Army. If the applicant had been properly advised and supported when he requested help he would not have needed to turn to other options to obtain a discharge and take care of his children. 4. The applicant also provides: a. Email from his spouse who states, she and her husband have been together since February of 1999 and married in 2002. They have 2 children together plus she have a handicap daughter from her previous marriage. Her husband has helped raise her since she was 5 years old, he is the only father she knows. They have also taken care of and supported his 3 children from his previous marriage which in total they have 6 children. They attend church at least 2 times a week if they could at Holy Cross Catholic Church and they are members. They own their home as well. They both take care of their moms as they are elderly and in need of medical assistance. He graduated in 2010 from Galiano Academy where he studied medical administration biller and coding. If there is anything else that can be used to help his case, please let her know. She has also included a family picture for the records of their kids and themselves. b. Letter from his employer who states, that applicant has been working with the company since 2 April 2003. He originally worked out of the Miami location and transferred to their Orlando location on 30 July 2007 when they opened. He is currently working as a transportation supervisor earning an annual salary of $53, 000. He is in good standing and is most likely to continue employment with their company. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army 19 August 1997. b. His DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) from 30 November to 1 December 1999, 20 December 1999, and 29 December 1999 to 14 January 2000. c. He surrendered to military authorities at Fort Bragg, NC on 15 January 2000, he was pending determination of AWOL/dropped from roll (DFR) status from his unit. d. The applicant was notified by his immediate commanders intent to separate him under the provisions of Army Regulation (AR) 635-200, (Enlisted Personnel - Personnel Separations) chapter 14-12(c) (commission of a serious offense) for being AWOL from on or about 20 December 1999 to on or about 21 December 1999 and from on or about 29 December 1999 to on or about 15 January 2000. e. On 7 February 2000, he acknowledged receipt and was advised by his consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense under the provisions of AR 635-200, chapter 14-12(c), its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights. He acknowledged: * he had been afforded the opportunity to consult counsel * that he was being consider for service characterization under other than honorable conditions * understood that he could expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to him * understood that as the result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life f. On 7 February 2000, he submitted a written statement to clarify the events surrounding the alleged AWOL dates noted in his notification letter. g. On 15 May 2001, the commander formally initiated separation under AR 635-200, chapter 14-12(c) and the chain of command recommended approval. On 12 June 2001, the chain of command recommend that he separated from the service under the provisions of chapter 14, paragraph 14-12c(l ), AR 635-200 and that the individual receive an under other than honorable discharge. h. On 13 July 2001, the separation authority approved separation action under AR 635-200, chapter 14-12(c) with the issuance of an under other than honorable conditions discharge. He will be reduced to the grade of private/E-1. i. On 7 August 2001, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for misconduct-serious offense under the provisions of AR 635-200, Chapter 14-12(c). It shows he completed 3 year, 10 months, and 29 days of active service. It also shows he was awarded or authorized. * Army Service Ribbon * Sharpshooter Marksman Qualification Badge with the Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar j. On 6 April 2010, the Army Discharge Review Board (ADRB) determined that applicant were properly and equitably discharged. Accordingly, his request for a change in the character and/or reason of your discharge was denied. 4. 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. 5. 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 evidence of post-service achievements for the Board to consider. Based upon the record, 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, provides for the separation of enlisted personnel. a. 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. 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) AR20170010335 5 1