ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 May 2019 DOCKET NUMBER: AR20170017700 APPLICANT REQUESTS: an upgrade of his general discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD 293 (Application for the Review of Discharge) 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 it has been more than 10 years since his discharge and he would like to go to college and use military benefits using the post 911 GI Bill. He is requesting an upgrade of his discharge status from general under honorable condition to honorable. He states he needs an opportunity to make a positive change for his family and future. 3. A review of the applicant’s service record shows: a. He enlisted into the U.S. Army on 16 April 2004. b. On 10 January 2005, the applicant was reported absent without leave (AWOL). c. On 22 January 2005, the applicant returned to duty. d. On 24 January 2005, he received a general counseling statement for being AWOL from 10 January to 22 January 2005. On this same day he was evaluated at Division Mental Health Section risk for self-harm or harm to others. He was put on unit watch and on 26 January 2005, he no longer required unit watch and was cleared of psychiatric precautions. e. On 14 February 2005, he accepted nonjudicial punishment under Article 15 for being AWOL from1 0 to 25 January 2005. f. On 7 March 2005, the applicant was AWOL. And on 6 April 2005, he was Dropped from the rolls as a deserter. He returned to military control on 12 July 2005. g. On 17 August 2005, charges were preferred against the applicant for one specification of AWOL. h. On 31 August 2005, the applicant was convicted by a summary court-martial Of one specification of AWOL from 7 march to 12 July 2005. The court sentenced him to reduction to Private E-1, confinement for 30 days, and forfeiture of pay. i. On 12 October 2005, the applicant’s immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c for commission of a serious offense. The reasons for the proposed actions are he was AWOL from 10 January until 22 January 2005 and again from 7 March 2005 until 12 July 2005. The immediate commander recommended that he receive a discharge under honorable conditions. The immediate commander advised the applicant of his right to: * consult with counsel or retain civilian counsel at no expense to the government * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * request a hearing before an administrative separation board * submit statements in his own behalf * waive any of these rights in writing * withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge * submit a conditional waiver of his right to have his case heard before an administrative separation board * undergo a complete medical examination and mental status evaluation IAW AR 40-501 (Standards of Medical Fitness) j. On 12 October 2005, he acknowledged receipt of the immediate commander’s decision to recommend him for separation. * he consulted with legal counsel on 13 May 2005, and he was advised of the basis for the contemplated action to separate him for commission of a serious offense * he waived his rights contingent on receiving a characterization of service or description of separation no less favorable than honorable conditions * he acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he also understands that if he receives a discharge which is less than honorable, he may apply to the Army Discharge Review Board and/or the ABCMR to upgrade his discharge; however, he realizes that consideration by either board does not imply that his characterization of service (discharge) would be upgraded k. On 13 October 2005, the immediate commander initiated separation action against the applicant under AR 635-200, paragraph 14-12c, commission of a serious offense. The applicant's intermediate commander recommended approval that the applicant be issued a general, under honorable conditions discharge. l. On 17 October 2005, the separation authority approved the request for discharge Under the provisions of AR 635-200, chapter 14 and directed a general under honorable conditions discharge and that he not be transferred to the Individual Ready Reserve (IRR). m. The applicant was discharged from active duty on 11 October 2005. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 14-12c with a general under honorable conditions characterization of service. He completed 11 months and 28 days of active service. His DD Form 214 shows he was awarded or authorized: * National Defense Service Medal * Army Service Ribbon * Global War on Terrorism Service Medal n. On 16 March 2016, the Army Discharge Review Board reviewed the applicant’s case and denied his request. 4. By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 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 when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of service completed prior to multiple AWOL offenses, as well as a lack of character evidence submitted by the applicant showing 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. 5/30/2019 6/ 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. First time drug offenders in the grade of sergeant and above, and all Soldiers with three years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense. All Soldiers must be processed for separation after a second offense. b. Paragraph 3-7a (Honorable Discharge) 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. c. Paragraph 3-7b (General Discharge ) 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 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.