IN THE CASE OF: BOARD DATE: 14 January 2020 DOCKET NUMBER: AR20180013271 APPLICANT REQUESTS: upgrade of his discharge under other than honorable Conditions (UOTHC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * 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, 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: a. He had to leave the military for personal reasons that required him to be home. During his time of service, he was never once cited or reprimanded for negative or unprofessional behavior. He has been out of the military for over 20 years and has been a model citizen. b. As a civilian, separate from his military career, he created a time of personal and professional growth. He got married, started a family, finished a degree and started a new career. He was never arrested or had a criminal record. He is actively involved in his community as treasurer and he volunteers at the homeless shelter. It is common for him to organize field trips for the youth and participate in many of his church’s functions. He thanks the Board for considering his request and would be happy to discuss the subject further in person if required. 3. The applicant enlisted in the Regular Army on 22 May 1987. 4. Multiple DA Forms 4187 (Personnel Action) show the following duty status changes: * his duty status changed from “Assigned not Joined” to “Absent without Leave” (AWOL) on 2 May 1994 * his duty status changed from “AWOL” to “Dropped from the Rolls” (DFR) on 1 June 1994 * his duty status changed from “DFR” to “Attached/Present for Duty” on 21 July 1999 5. A DD Form 458 (Charge Sheet) shows he was charged on 27 July 1999 with being AWOL from 2 May 1994 until 21 July 1999. 6. On 27 July 1999, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He did not submit a statement in his own behalf. 7. On 27 July 1999, his immediate commander, recommended approval of his request for discharge in lieu of trial by court-martial, stating based on his previous record, punishment could be expected to have minimal rehabilitative effect and discharge was in the best interest of all concerned. He stated there did not appear to be any reasonable ground to believe the applicant was mentally defective, deranged, or abnormal at the time of his misconduct. He recommended a UOTHC discharge. 8. On 29 May 2000, the approval authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed his reduction in rank/grade to private/E-1 and the issuance of a UOTHC Discharge Certificate. 9. His DD Form 214 shows he was discharged on 14 September 2000 in lieu of trail by court-martial and his service was characterized as UOTHC. He completed 12 years and 6 days of active service during this period, with lost time from 2 May 1994 until 1 July 1999. 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 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 with his statement 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 : : : 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, 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. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013271 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1