ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2019 DOCKET NUMBER: AR20180014406 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Letter of support * Standard Form 180 (Request Pertaining to Military Records) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, he was 17 years old when he enlisted in the Army. His military pay kept decreasing, going from $900 to $250, and no one seemed able to tell him why. Despite asking many times to have this rectified, nothing happened. He is older now and is ready to be a true and responsible Soldier. 3. The applicant provides a letter from a Veterans Support Service, which indicates the applicant is one of their clients. 4. The applicant's service records show: a. After obtaining his parent's written permission, the applicant enlisted into the U.S. Army Reserve (USAR) on 22 March 1997 for an 8-year term; he was 17 years old. b. On 9 Jun 1997, the applicant was ordered to active duty to enter basic combat training; on completion, he was released from active duty on 12 August 1997. On 12 December 1997, his USAR chain of command promoted him to private (PV2)/E-2. He was ordered to initial active duty for training on 16 June 1998, completed advanced individual training, and was honorably released from active duty on 27 August 1998. His DD Form 214 shows he completed 2 months and 12 days of net active service and was awarded the Army Service Ribbon. b. On 18 November 1998, the applicant requested the USAR release him so he could enlist into the Regular Army (RA); on 13 January 1999, he enlisted into the RA for a 3-year term; he was 19 years of age. Orders assigned him to Fort Lewis, WA; he arrived on or about 14 January 1999. c. On 4 May 2000, his Fort Lewis unit reported him as absent without leave (AWOL) and, effective 3 June 2000, dropped him from Army rolls. On 24 August 2000, a city police department in Ohio notified the U.S. Deserter Information Point that the applicant had been arrested by civil authority and was being held in a county jail. d. On or about 1 March 2001, the applicant was transferred to the U.S. Army Personnel Control Facility (PCF) at Fort Knox, KY. (His service record does not include documentation explaining what occurred between 24 August 2000 and 1 March 2001). (1) On 16 March 2001, the applicant's PCF commander preferred court-martial charges against him for having been AWOL from 4 May 2000 until 1 March 2001 (301 days). (2) On that same date, after consulting with counsel, the applicant affirmed in writing he had been AWOL from 4 May 2000 until 1 March 2001. He stated he was making this administrative admission, despite the absence of records, so that he could process out of the Army. (3) The applicant then voluntarily requested discharge in-lieu of trial by court- martial under chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he stated no one subjected him to coercion and counsel had advised him of the implications of his request; he further acknowledged he was guilty of the charges. He elected not to submit a statement in his own behalf. e. On 17 December 2001, the separation authority approved the applicant's request and directed his under other than honorable conditions discharge; the separation authority also ordered the applicant's reduction to private/E-1. On 17 January 2002, the applicant was discharged accordingly; his DD Form 214 shows he completed 2 years, 2 months, and 4 days of his 3-year enlistment contract, with lost time from 4 May 2000 through 28 February 2001. He was awarded or authorized the Army Service Ribbon. 4. The applicant asserts, in effect, he went AWOL because his pay was decreased without explanation and his leadership failed to take corrective action. He maintains he is older now and ready to take responsibility for his actions. a. During his active duty service, the applicant was AWOL for more than 30 days; the Manual for Courts-Martial at the time showed the maximum punishment for this offense included a punitive discharge. Soldiers charged with UCMJ violations that carried a punitive discharge among its punishments could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. b. 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: 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, the reason for his separation and whether to apply clemency. The Board found sufficient evidence, as a matter of equity, to change the character of service for the applicant’s DD Form 214 for the period of service ending 27 August 1998 as he was awarded and MOS and returned to this USAR unit upon completing of training. The Board found insufficient evidence of on- service mitigation for his 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 on the applicant’s final DD Form 214 was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 27 August 1998 to show in item 24 (Character of Service) – “Honorable”. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the character of service on the applicant’s DD Form 214 for the period of service ending 17 January 2002. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7b (General Discharge) stated 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. b. Chapter 10 permitted a Soldier to request discharge in lieu of trial by court-martial when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States (1998 Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an under other than honorable conditions discharge was normally furnished, but the discharge authority could direct a general discharge, if warranted. 3. AR 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Chapter 7 (Reductions in Grade) outlined the reasons for reduction in rank; Soldiers approved for an under other than honorable conditions discharge were required to be to the lowest enlisted grade. 4. The Manual for Courts-Martial, United States (1998 Edition), Appendix 12 (Maximum Punishment Chart) showed both a bad conduct and dishonorable discharge were punishments allowed for convictions of Article 86 (Absent without Leave for over 30 Days when Terminated by an Apprehension). 5. 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 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. ABCMR Record of Proceedings (cont) AR20180014406 4 1