ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170014651 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) * Self-Authored Letter * Character Reference Letters (2) 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 was a good Soldier. He did not know he had the conditions that he has now. He loved the military and still does. He has been a great citizen and has not gotten into any trouble. He does not blame the military. He had issues that he could not control. He started off having problems adapting in the military. He went on temporary duty and when he came back he was looked at as less than a soldier. He boxed for the Fort Hood Boxing Team under Coach Jesse. Going back to his unit though, he was treated like crap by sergeants and privates who all hated him. He felt alone. He ran and went absent without leave (AWOL). He felt like he had to do it to keep his sanity, to not hurt himself, or to not hurt anyone around him. He has walked around for 20 years in shame. He wants an upgrade to have a better quality of life. His dream was to become a “drill sergeant.” He just wants to walk with his head high again as an American soldier. 3. The applicant provides two character reference letters. a. Sergeant First Class X. is a grade school friend. He states the applicant was an excellent student and athlete. As a former drill sergeant himself, he states the applicant was a “super Soldier” while in basic training and advanced individual training. He would share a foxhole with the applicant today if the need arose. Since leaving the military, he can vouch for the applicant’s strong commitment to his friends, family, and community. b. X. is the applicant’s niece. She states that applicant has always been about family and friends, helping in any way that he can. The applicant was involved in school and sports while in high school. He left for the Army and when he returned he did not seem to be himself. The applicant never talks to any family about anything. She is grateful that the applicant is willing to talk to the Board. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 4 September 1992. b. On or about April 1994, he accepted nonjudicial punishment (NJP) under Article 15 for one specification of AWOL from 24 March 1994 to 25 March 1994. His punishment included a reduction to private (PVT)/E-2. c. On 11 October 1994, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of AWOL from 19 May 1994 to 6 October 1994. d. After consulting with legal counsel, he subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge in Lieu Trial By Court-Martial). He acknowledged: * maximum punishment * he is guilty of the charge against him or of a lesser included offense * he did not desire further rehabilitation * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions * he may be deprived of his rights and benefits of a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge e. In his request for discharge, he elected to submit a statement. In his statement, he stated he went AWOL because he could not take the mental pressure that he felt from the unit. It had become so bad suicide was on his mind, or that he would just go crazy in general. He started to get low self-esteem. Without self-esteem or motivation, there is no way anyone can be in the military. His unit took that all away from him. The military is not bad, it is great for those that can handle it. He feels like he was a disgrace to the Army. He never felt more proud than when wearing a uniform. He just could not handle the responsibilities that came with the uniform. He had nothing. The Army was like Red Cross in that it saved him. He felt that his unit would not let him out. They delayed the process because they knew that he was weak minded. He tried. He is sorry for disrespecting the Army. f. On 21 December 1994, consistent with the chain of command recommendation, the separation approval authority approved the applicant’s request for discharge in lieu of court-martial. He would be discharge with an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade. g. On 31 January 1995, he was discharged from active duty under the provisions of AR 635-200, with an under other than honorable conditions discharge and was reduced to the PVT/E-1. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects he completed 2 years and 10 days of active service. It also shows he was awarded or authorized: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Grenade Bar * Marksman Marksmanship Qualification Badge with Rifle Bar 5. By regulation, states a soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 (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 by not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 (Discharge in Lieu of Trial by Court-Martial) states a soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. A discharge under other than honorable conditions normally is appropriate for a soldier who is discharged for the good of the Service. 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 the 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, 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 upgrade service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170014651 2 1