ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20170017432 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States). * DD Form 214 (Certificate of Release or Discharge from Active Duty). * Army Discharge Review Board (ADRB) decision letter 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 is requesting an upgrade because he cannot go to school and get a better education. 3. A review of the applicant’s service records shows: a. Having had prior service in the U.S. Navy, he enlisted in the Regular Army on 6 January 2004. b. He served in Iraq from 25 January 2005 to 14 January 2006. c. The applicant was absent without leave (AWOL) on three separate occasions for a total of 8 days from: * 11 August 2006 to 14 August 2006 * 19 October 2006 to 20 October 2006 * 24 October 2006 to 25 October 2006 * d. On 14 December 2006, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 (Separation for Misconduct), paragraph 14-12(c), for commission of a serious offense for being AWOL, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel). He recommended an under other than honorable conditions discharge. e. On 30 January, 2007, the applicant was advised by his consulting counsel of the bases for the contemplating action to separate him for misconduct under AR 635-200, Chapter 14 and its effects; of the rights available to him; and the effects of any action taken by him in waiving his rights. The applicant submitted a conditional waiver and indicated he understood he was entitled to have his case considered by an administrative separation board in the unlikely event he was recommended for a general discharge. He elected not to provide a statement on his behalf. He understood that he may be ineligible for any future enlistment in the Army. f. On 31 January, 2007, his immediate commander initiated separation action against him due commission of a serious offense. His chain of command recommended approval with the issuance of a general, under honorable conditions discharge. g. On 8 February 2007, the separation authority approved the applicants discharge under the provisions of AR 635-200, Chapter 14, paragraph 12c, for commission of a serious offense and ordered the applicant's service be characterized as general, under honorable conditions. h. On 28 February 2007, he was discharged from active duty under the provisions of AR 635-200, Chapter 14. His DD Form 214 shows he received a characterization of service of general, under honorable conditions. He completed 5 years total of active service. It also shows he was awarded or authorized: * Army Commendation Medal * USN “E” Ribbon * Navy Good Conduct Medal * National Defense Service Medal (2nd Award) * Global War On Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon * Navy Sea Service Deployment Ribbon (4th Award) i. On 26 July 2009, applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his under honorable conditions (general) discharge. The ADRB found that he was properly and equitably discharged accordingly in the character, therefore, his request for upgrade was denied. a. 4. By regulation, members are subject to, separation for commission of 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 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, the Board determined that relief was not warranted. Based upon the multiple AWOL offenses and a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to discharge, the Board concluded that the characterization of service received at the time of discharge 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 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 that 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. 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 14 -12c (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. 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 2. 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.