ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 27 September 2019 DOCKET NUMBER: AR20180016319 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions characterization of service to honorable or general, under honorable conditions. 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 from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Personal statement 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 (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. He feels lots of time has passed, [but] he was very immature and [did not] understand the offense. He cannot say an error was made. He believe he could have continued to serve, if reassigned. But no options were provided to do so. He was told he could not be reassigned due to troops not being able to trust him. He feels like he could have continued to serve, but no option was provided. 3. The applicant states he tried to serve, wanted to serve, but just could not or was not able to. He applied or tried to apply for a compassionate reassignment, but was unfairly denied and told to forget it. He asked to be reassigned to a different duty station due to potentially bringing down the morale of his unit to start over and was told his record would follow and no one would give him a second chance. 4. On 17 November 1999, at the age 18, he enlisted in the Regular Army for 4 years. He completed training, was awarded military occupational specialty 13F (Fire Support Specialist), and was assigned to Hawaii from 11 June 2000 to 31 January 2001. 5. A Charge Sheet, dated 28 November 2000, shows on or about 5 August 2000, he stole approximately 352 Compact Discs, a Panasonic Discman, and one black Compact Disc case of a value of about $4,800, the property of another member. 6. On 26 December 2000, the applicant consulted with legal 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, his available rights, the possible effects of an under other than honorable conditions discharge if the request were approved, and of the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation (AR) 635- 200 (Personnel Separations – Enlisted Personnel). He elected not to submit a statement on his own behalf. a. Initially two of the applicant’s intermediate commanders recommended he be court-martialed; however, they later recommended approval of his request for discharge with an Under Other Than Honorable Conditions Discharge Certificate. b. On 11 January 2001, the separation authority approved the applicant's request for discharge with the issuance of an under other than honorable conditions characterization of service. The applicant was discharged accordingly on 31 January 2001. 7. On 31 January 2001, he was discharged accordingly. His DD Form 214 shows he completed 1 year, 2 months, and 14 days of net active service this period. He was awarded the Army Service Ribbon, Expert Marksman Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar. 8. Chapter 10, AR 635-200 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 at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 9. The applicant contends he was very immature, did not understand the seriousness of the offense, tried to apply for a compassionate reassignment to start anew and was told that would never happened because his record would follow him and he could not be trusted. The available evidence shows he was 18 at the time he enlisted, charged for stealing approximately $4,800 of property from another service member. He voluntarily requested a discharge to avoid a trial by court-martial. He completed 1 year, 2 months, and 14 days of his 4 year service obligation. The Board should consider the applicants age in reaching its determination in accordance with the published equity, injustice, or clemency determination guidance. 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): Not Applicable 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 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. This regulation also provides that: b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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 based on 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) AR20180016319 6 1