ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 21 February 2020 DOCKET NUMBER: AR20180004780 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: . DD Form 293 (Application for the Review of discharge from the Armed Forces of the United States), dated 6 July 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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: a. While stationed in Baumholder, Germany, his wife and daughter were in the States. He thought everything was going according to plan and he was going to serve his country to the best of his ability, to make a better life for his family. However, his wife could not handle being a military wife. One day, he got a telephone call from his mother telling him he was losing his home because the payments weren't being made. His wife was trying to put his daughter up for adoption, which sent him into a panic mode. b. He went to his superior officer and explained what was going on, thinking he was going to be guided in the right direction but he got nothing. He asked several times for leave to try and stop what was going on; he was not granted leave so he left on his own and was charged with being absent without leave (AWOL). The type of discharge he received has haunted him ever since. He understands that what he did was wrong but he should not have to pay for it for the rest of his life. 3. The applicant enlisted in the Regular Army on 25 February 2000. Following the completion of his initial entry training, he was assigned for duty in the Federal Republic of Germany. 4. The applicant's unit reported him AWOL on or about 7 December 2000. He was dropped from the rolls as a deserter on 8 January 2001. He remained absent in desertion until he returned to military control, on or about 11 June 2001. 5. Court-martial charges were preferred against the applicant on 18 June 2001 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 7 December 2000 through on or about 11 June 2001. 6. The applicant consulted with legal counsel on or about 18 June 2001. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. His request shows he made an election not to submit a statement. 7. The separation authority approved the applicant's request for discharge on 11 February 2002 and directed his reduction to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 8. The applicant was discharged on 20 February 2002, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 9. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 10. The Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge on 7 August 2002. The ADRB determined his discharge was both proper and equitable. 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the published DoD guidance for consideration of discharge upgrade requests, the Board determined relief was not warranted. The Board considered the applicant's statement, his record of service, the nature of his misconduct, the request for discharge and the reason for his separation. The Board did not find evidence that applicant provided a statement, explaining his reasons for AWOL, during the processing of his CH 10 request. The Board found insufficient evidence of in-service mitigation for the misconduct; the applicant did not provide evidence of post-service conduct or letters of reference in support of a clemency determination. Based upon a preponderance of evidence, to include the short period of honorable service completed prior to a lengthy AWOL offense, the Board determined there was insufficient evidence of an error or injustice which would warrant a correction to the characterization of service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :XX 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. X CHAIRPERSON 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 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. 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. b. 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 10 states 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 would normally be furnished to an individual who was discharged for the good of the service. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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//