ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 28 February 2020 DOCKET NUMBER: AR20180009071 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) REFERENCES: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Chapter 10 provides 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. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. 3. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed policies and procedures governing promotion and reduction of Army enlisted personnel. Paragraph 7-1e provided that when the separation authority determined a Soldier was to be discharged from the service under other than honorable conditions, the Soldier would be reduced to the lowest enlisted rank. 4. 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 (BCMRs) regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. 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 he was a minor, only 17 years old, when he enlisted and did not have appropriate support during his period of service. He is currently disabled after losing an eye during a civilian attack. 3. On 5 January 1999, he enlisted in the Regular Army. 4. His records show he was absent without leave (AWOL) during the period 9 to 24 August 1999 and was pending nonjudicial punishment. 5. His records show he was dropped from the unit rolls effective 2 September 1999. 6. On 13 April 2000, he surrendered to civilian authorities in Columbus, GA. He was assigned to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY, effective that date. 7. On 18 April 2000, court-martial charges were preferred against him violating Article 86 (Absence without Leave) of the Uniform Code of Military Justice for being AWOL from 2 September 1991 through 13 April 2000. 8. On 18 April 2000, he consulted with defense counsel and voluntarily requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He stated he did not desire further rehabilitation and had no desire to perform further military service and acknowledged he understood: * charges were preferred against him for being AWOL from 2 September 1991 through 13 April 2000 * he might be discharged under conditions which were other than honorable, which would deprive him of many or all Army benefits as a veteran * he might expect to encounter substantial prejudice civilian life as a result * while he may apply to either the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading, that did not imply his discharge would be upgraded 9. He submitted an admission of AWOL for administrative purposes, undated, wherein he stated he knowingly, willingly, and voluntarily declared he was AWOL from the U.S. Army from 2 September 1999 through 13 April 2000. 10. On 12 July 2001, consistent with the chain of command recommendations, the separation authority approved his request for discharge in lieu of trial by court-martial and directed his reduction to the lowest enlisted grade and discharge under other than honorable conditions. 11. Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, Orders 218-7, dated 6 August 2001, reduced him to the rank/grade of private/E-1 effective 12 July 2001 under authority of Army Regulation 635-200, chapter 10, and Army Regulation 600-8-19, paragraph 7-1e. 12. On 10 August 2001, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * he completed 1 year, 11 months, and 7 days of net active service during this period * he was authorized award of the Army Service Ribbon * he did not complete his first full term of service * his narrative reason for separation as in lieu of trial by court-martial * he accrued lost time from 9 through 23 August 1999 and from 2 September 1999 through 12 April 2000 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, the frequency and nature of his misconduct, his surrender to civilian 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 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. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180009071 5 1