ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20170010601 APPLICANT REQUESTS: in effect, reconsideration of his previous request for an upgrade of his discharge under other than honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10 U.S. Code, Section 1552). * Memorandum, U.S. Army Field Artillery Center and Fort Sill, OK, dated 20 June 1997, subject: Delegation of Authority * Army Board of Correction of Military Records (ABCMR), Docket Number AR20080020053, dated 7 May 2009 * Letter, ABCMR, dated 12 May 2009 * Self-Authored Letter * Character reference Letters * Grandmother's Death Certificate, dated 27 June 1997 * Grandfather's Death Certificate, dated 16 January 1998 * DA Form 2-1 (Personnel Qualification Record-Part II) * Orders 118-0127, U.S. Army Field Artillery School and Fort Sill, dated 28 April 1999 * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 AR20080020053 on 7 May 2009. 2. The applicant states: * he had just returned from Korea at the time of his discharge * he had been married less than 4 months when he was sent to Korea * he made several attempts to delay and/or decline his overseas assignment * he returned from Korea and discovered his wife cheating with his former roommate * he contacted his unit at Fort Bragg, NC, explained the situation, and told them he wasn't coming back * he was reported as absent without leave (AWOL) and dropped from the unit rolls * he turned himself in at Fort Sill, OK * he opted to be discharged to attempt to repair his marriage * he was judged too harshly given the situation he was going through * he was never asked if he wanted counseling or help of any kind * he was given options that provided no real solutions * he would have finished his time in the military if he was offered help * he would have received help if this happened today * he is working for the Army again and sees a better support system in place 3. A review of the applicant's service records shows: * he enlisted in the Regular Army on 2 November 1995 * he was assigned to Camp Humphreys, Korea, effective 3 July 1997 * he was reported as AWOL effective 31 July 1998 * he returned to military control effective 2 December 1998 * he was charged with being AWOL for more than 30 days * he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of service in lieu of trial by court-martial 4. The applicant provided additional evidence: a. self-authored statements stating – * he was a good soldier * he received orders to Korea after four months of marriage * his grandparents became sick and did not want to leave them * his wife cheated on him while he was deployed to Korea with former roommate * he felt like the Army had failed him * he turned himself in at Fort Sill, OK * he had three options; court-martial, Article 15, or Chapter 10 * he chose Chapter 10 to go home and moved forward * he made a poor decision * he never had any formal disciplinary actions prior to this AWOL charge b. character reference letters stating – * self-motivated and professional * his wife stated a lot of things weighted very heavily on him * he provides the highest quality of standards and professionalism * he displays the highest in integrity and loyalty * his quality of work and overall ethics are commendable * hard working and dedicated to work * he faced financial issues that put a high level of stress on him * the quality of his overall work and his work ethic are commendable * always accepted challenges with enthusiasm and professionalism c. His case was denied by the ABCMR, Docket Number AR20080020053, dated 12 May 2009. 5. 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 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 a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions and letters of support 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. 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 to amend the decision of the ABCMR set forth in Docket Number AR20080020053 on 7 May 2009. 6/26/2019 X CHAIRPERSON Signed by: 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 635-200, in effect at that time, set forth the basic authority for separation of enlisted personnel. a. 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. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. c. Paragraph 3-7b 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. 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 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 a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of 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//