IN THE CASE OF: BOARD DATE: 20 December 2019 DOCKET NUMBER: AR20180006031 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 (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 he is requesting an honorable discharge because he needs medical insurance (i.e., Department of Veterans Affairs (VA) insurance). He was on active duty for 180 days. There were very stressful conditions at that time and he was a very good foot Soldier. He really needs this for him and his family. An upgrade of his discharge would help him and his kids. 3. On 22 January 1997, the applicant enlisted in the Regular Army for a period of 3 years. He was 20 years old when he enlisted in the Regular Army. He completed training requirements and was awarded military occupational specialty 11B (Infantryman). 4. His service record shows: a. He was counseled on multiple occasions for: * failing to follow instructions and not being accounted for * failing to clean his room and failing to sew company markings on his “TA-50” * failing to be at his appointed place of duty * being AWOL * violating pass policy * disobeying the orders of the battalion commander and command sergeant major * revoked check cashing privileges b. He was absent without leave (AWOL) from 3 to 5 June 1997. c. On 25 June 1997, he received non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being AWOL from on or about 3 to 5 June 1997 and disobeying a lawful order. He did not appeal. d. He was absent without leave (AWOL) from 16 July to 13 August 1997. e. A second dishonored check notification indicating he had two dishonored checks with the Army and Air Force Exchange Service. 5. On 21 August 1997, the applicant was convicted by a summary court-martial. He plead guilty and was found guilty of being AWOL from 16 July to 13 August 1997, failing to go to his appointed place of duty, being disrespectful in deportment to a noncommissioned officer, making and uttering worthless checks, and breaking restriction. 6. On 11 September 1997, the finding of guilty of making and uttering worthless checks and breaking restriction were dismissed. 7. On 22 September 1997, a medical examination and a mental status evaluation medically cleared the applicant for administrative separation proceedings deemed necessary by his chain of command. 8. On 7 October 1997, the applicant’s commander notified him that under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), he was initiating action to separate him for misconduct, commission of a serious offense and advised him of his available rights. The specific reason for separation action was the applicant’s conviction by a summary court-martial for being AWOL, failing to go to his appointed place of duty, and being disrespectful to a noncommissioned officer. The commander also referred to the applicant's NJP for being AWOL and willful disobedience of a commissioned officer and states the applicant’s conduct was highly prejudicial to the good order and discipline of the Armed Forces and would not be tolerated by his command. a. The applicant acknowledged he was advised of the basis for his contemplated separation for misconduct, its effects, and of the rights available to him. He waived consultation with military and civilian legal counsel; and elected not to submit statements in his own behalf. b. His chain of command recommended approval of the separation action and recommended he be issued a UOTHC discharge. His chain command further stated that he had no potential for useful service under conditions of full mobilization. c. The legal office recommended approval of the applicant’s administrative discharge action. d. The separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c and directed he receive an other than honorable discharge. 9. On 6 November 1997, the applicant was discharged for misconduct. His DD Form 214 shows he completed 8 months and 13 days of his 3 year enlistment. His service was characterized as under other than honorable conditions. He had lost time from 3 to 5 June 1997 and 16 July to 13 August 1997. He was not awarded or authorized a personal decoration. He completed 9 months and 15 days of his 3 year contractual obligation. 10. Army Regulation 635-200, chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. 11. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :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. 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) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. b. 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. 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. a. 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. b. 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, 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// ABCMR Record of Proceedings (cont) AR20180006031 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1