BOARD DATE: 24 January 2020 DOCKET NUMBER: AR20180012610 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) character of service be upgraded to a general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 he was told that his discharge would be changed to a general in six to nine months as long as he stayed out of trouble. He has been doing better with his life issues since his discharge. He has been rehabilitated and on a good path. He did not know that he had to put in a request for his discharge to be upgraded. 3. On 24 August 1995, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 3 years. On 15 January 1998, he reenlisted for a term of 2 years. 4. On 19 April 1999, court-martial charges were preferred against the applicant for being AWOL from 8 December 1998 and remaining absent until 14 April 1999. 5. On 19 April 1999, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635- 200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10. The applicant elected not to submit a statement on his own behalf. 6. The applicant's immediate commander recommended approval of his request and on 18 December 1999, the appropriate separation authority approved the applicant's request directing he be reduced to private (PVT)/E-1 and he be issued a discharge under other than honorable conditions. The applicant was placed on excess leave from 20 April 1999 to 6 July 2000. 7. On 6 July 2000, he was discharged accordingly. His service was characterized as UOTHC. He completed 4 years, 6 months, and 6 days of net service this period (2 years, 1 month, and 27 days since his reenlistment). His DD Form 214 shows: * He was awarded or authorized: * National Defense Service Medal * Armed Forces Service Medal * Army Service Ribbon * Overseas Service Ribbon * M-9mm Pistol Expert Marksmanship Qualification Badge * Hand Grenade Sharpshooter Qualification Badge * Dates of Time Lost During This Period: 19981208-19990413 (AWOL 127 days) 8. The ATZK-PM Form 4939 (Characterization of Service Checklist for Administrative Discharge Actions) states the applicant served 10 months and 28 days in the enlistment period of service. It also indicated that the applicant received three Article 15s, Under the Uniform Code of Military Justice (UCMJ) and that they were unavailable. His personnel qualification record shows that he was reduced to private E-1 but was void of the reason for the reduction or the date of rank. 9. The applicant states he was told that his discharge would be changed to a general in six to nine months as long as he stayed out of trouble. He has been doing better with his life issues since his discharge. He has been rehabilitated and on a good path. He did not know that he had to put in a request for his discharge to be upgraded. His record shows he enlisted at the age of 18 years old, he received three Article 15s, USMJ, and court-martial charges were preferred against him for being AWOL, which resulted in 127 days lost. 10. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 11. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge. Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge. 12. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, 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, and the character and reason for his separation. The Board noted the facts presented above. The Board noted that he was AWOL from 8 December 1998 and remaining absent until 14 April 1999. The Board also noted that he had legal counsel, that he voluntarily requested discharge under the provision of Chapter 10, for the good of the service – in lieu of trial by court-martial, that he declined to submit a statement in his defense, that he acknowledged his understanding that by requesting discharge, that 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, and that he could receive a discharge under other than honorable conditions. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. There is no provision of law or regulation for an under other than honorable discharge to be upgraded to a general discharge in six to nine months if the Soldier stays out of trouble. It is up to the Soldier to provide evidence that the discharge was erroneous or unjust. The Board can consider a clemency upgrade based on post service conduct. The applicant would have to provide evidence of sufficiently good post-service conduct that might warrant a clemency upgrade. 3. After reviewing the application and all supporting documents, the Board found that relief is 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. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the Soldier'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 was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 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. 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, 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. 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// ABCMR Record of Proceedings (cont) AR20180012610 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180012610 5 ABCMR Record of Proceedings (cont) AR20180012610 4