ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 April 2020 DOCKET NUMBER: AR20180008218 APPLICANT REQUESTS: In effect, an upgrade of his under other than honorable condition discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal statement, 15 May 2018 * (4) Support letters (FM, KJ, AR, FW) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 in 1998, he made a bad and embarrassing choice, which led to the premature decision to improperly leave the Army. Words still cannot describe how sorry he is for making the worst mistake of his life. He realizes that his action not only ended his career and good standing with the military, but affected others within the 74th Engineer Company, and his family. For that, he is deeply sorry and asks for forgiveness. Since his discharge, he has become a small business owner, and he is an active church member and active within his community. He tries to help other veterans as often as he can, as well as be a good role model to his family and friends that look up to him. He prays the Board will have mercy on him and upgrade his discharge. 3. The applicant provides four letters of support: a. FM is the applicant’s pastor for over 20 years and states he had the opportunity to interact and communicate with the applicant on a regular basis. He has come to know the applicant on a personal level. Their conversations are often about his military experiences. He is always impressed by the intensity of his excitement when the applicant is talking about the armed forces. He expects that the applicant’s exceptional work ethics has a lot to do with his military training. The applicant is one of the most honest and fair people FM knows. He is extremely impressed by his reliability and commitment to task. The applicant is a good person. FM strongly supports the applicant’s request for assistance. He served his country well and with dignity. b. KJ states she has known the applicant for 40 years. The applicant plays a huge role in helping raise her two children. If she or her kids need anything and the applicant could help he does. He checks in on them almost daily. He has been and continues to be a great role model to her teenage son, and an awesome big brother/best friend to her. c. AR states she has known the applicant for 45 plus years. She is his older sister and the applicant is a blessing to their family. He has matured to be a respectful young man. He is a responsible hard worker. He sets high goals. Goals that are assessable with persistence. He is encouraging and looks out for his nieces and nephews. He pushes them to strive for all that they can attain. He is a God fearing young man. She thanks God he is in their life. d. FW states he hopes to provide insight to his leadership abilities and potential for continued service. The applicant was an outstanding leader who has proven himself across a wide variety of garrison training environments. He first met the applicant in 1996, when he was serving as a Bridge crewmember in South Korea. The applicant was technically and tactically proficient and he demonstrated a level of maturity that allowed him to effectively communicate with noncommissioned officers, commissioned officers, and Soldiers alike. He possesses outstanding interpersonal skills and his enthusiasm, professionalism, and motivation are contagious. He was a strong motivator of Soldiers and sets a strong moral and leadership example that anyone would do well to follow. He was a superb leader of troops and was a tremendous asset to the United States Army. His maturity and judgement far exceeded his time in service. He possesses limitless potential and will succeed in any position where strong character and effective leadership are required. Separate from his military career, the applicant’s role as a civilian has created a time of personal and professional growth. He has gotten married started a family and excel in another career. He is actively involved in the community. It is quite common for FW to encounter the applicant volunteering at the homeless shelter, organizing field trips, decorating the church. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 15 November 1994. He reenlisted on 13 February 1997. b. A “characterization of service checklist for administrative discharge actions” sheet shows he was absent without leave (AWOL) from 24 February 1998 until 23 March 1998. He went AWOL again on or about 1 April 1998 and surrendered to military authorities 1520 hours, 5 May 1998, Fort Knox, KY. c. Court marital charges were preferred on 7 May 1998. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being AWOL for a period from on or about 1 April 1998 and did remain so absent until on or about 5 May 1998. d. On 7 May 1998, he consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * the maximum punishment if found guilty * if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * if approved, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge * if he desires a review of his discharge, he must apply to either the Army Discharge Review Board or the Army Board for Correction of Military Record e. On 15 June 1999 his immediate commander recommended separation under provisions of AR 635-200, chapter 10. f. Consistent with the chain of command's recommendation, on 8 August 1999, the separation authority approved the applicant’s request for discharge in lieu of trial by courts-martial and directed an under other than honorable conditions discharge and he be reduced to the grade of private/E-1. g. On 3 March 2000, he was discharged UP of AR 635-200, Chapter 10 under other than honorable conditions in the rank of private/E-1. He completed 5 years, 1 month and 17 days of total active service, of which 666 days of excess leave from 8 May 1998 until 3 March 2000, And lost time from 24 February to 3 March 1998 and 1 April to 4 May 1998 was lost time. It also show he had continuous honorable service from 15 November 1994 to 12 February 1997. He was awarded or authorized the: * Army Achievement Medal * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Hand Grenade Expert Qualification Badge * M16 Rifle Marksman Qualification Badge 5. There is no evidence the applicant applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation (AR 635-200), chapter 10 of that regulation provides, in pertinent part, 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 is normally considered appropriate. 7. 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: 1. 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, a prior period of honorable service, the frequency and nature of his misconduct, his surrender to authorities, the charges against him, his request for discharge and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. The Board considered the applicant’s statement regarding post-service achievements and the 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 should be amended as a matter of clemency. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD form 214 for the period ending 3 March 2000 to reflect in item 24 (Character of Service) – “Under honorable conditions (General)” vice “Under other than honorable conditions.” 2/16/2021 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (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. Chapter 10 of that regulation provides, in pertinent part, 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 is normally considered appropriate. a. Paragraph 3-7a(1) states 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b(1) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. 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. //NOTHING FOLLOWS//