ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 September 2019 DOCKET NUMBER: AR20180016067 APPLICANT REQUESTS: The applicant requests upgrade of his under other than honorable conditions discharge to honorable. 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 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 he suffered an injustice. Upon his discharge, a military lawyer told him his character of discharge would be upgraded; it appears he was misled because he now realizes this information was wrong. 3. The applicant's service records show: a. He enlisted into the Regular Army on 13 May 1999 for a 4-year term; he was 22 years old. Orders assigned him to Fort Leonard Wood for one-station-unit-training (OSUT); he arrived at his OSUT unit on 19 May 1999. b. On 9 November 1999, his OSUT unit reported him as absent without leave (AWOL), and dropped him from Army rolls on 8 December 1999. On 10 June 1999, civil authority arrested the applicant and placed him in a county jail. Effective 21 June 2000, orders transferred the applicant to the U.S. Army Personnel Control Facility (PCF) at Fort Sill, OK. c. On 29 June 2000, the applicant's PCF commander preferred court-martial charges against him for AWOL from 8 November 1999 until 21 June 2000 (226 days). On that same date, after consulting with counsel, the applicant 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. d. On 24 October 2000, the applicant's PCF commander recommended approval of the applicant's request; the commander noted the applicant's stated reason for his AWOL was personal, and that he had become disillusioned with the military. e. On 21 November 2000, the separation authority approved the applicant's request and directed his under other than honorable conditions discharge; the separation authority further ordered the applicant's reduction in rank to private/E-1. On 18 December 2000, the applicant was discharged accordingly; his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 11 months and 20 days of his 4-year enlistment contract, with lost time from 8 November 1999 through 20 June 2000. His DD Form 214 did not reflect any awards authorized. 4. The applicant asserts, in effect, a military lawyer unjustly misled him into thinking his character of service would be automatically upgraded. a. The Army has never had a policy of automatically upgrading character of service. For consideration of an upgrade, applicants are required to submit applications, within statutory time limits, to the Army Discharge Review Board or the ABCMR. b. 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. c. 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 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 of 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. ADMINISTRATIVE NOTE(S): 1. A review of the applicant's DA Form 2-1 (Personnel Qualification Record – Part II) indicates the applicant completed advanced individual training for military occupational specialty (MOS) 12B (Combat Engineer). 2. AR 600-8-22 (Military Awards) states the Army Service Ribbon will be awarded upon successful completion of initial MOS training. 3. AR 635-5 (Separation Documents), in effect at the time, stated a Soldier's DD Form 214 will list all awards and decorations authorized, regardless of when the Soldier received the award. 4. As a result, amend the applicant's DD Form 214, ending 18 December 2000, by adding the Army Service Ribbon. 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge). An honorable character of service represented a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service had generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. 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. c. 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. Paragraph 7-1e (Reductions) stated 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) AR20180016067 7 1