ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 April 2019 DOCKET NUMBER: AR20180016717 APPLICANT REQUESTS: * his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), to show he was absent without leave (AWOL) from 971230 through 980201, not the stated period of 134 days APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), with self-authored statement * DA Form 2-1 (Personnel Qualification Record – Part II) * Letter of Commendation, dated 27 January 1995 * One Station Unit Training (OSUT) Diploma, dated 3 May 1995 * Certificate of Achievement, dated 28 June 1996 * DA Form 4187 (Personnel Action), dated 1 March 1996 * DA Form 638 (Recommendation for Award), dated 22 January 1997 * DA Form 4980-18 (Army Achievement Medal Certificate), date 4 March 1997 * DA Form 4187 (Personnel Action), promotion to Specialist (SPC), 17 March 1997 * DA Form 3340-R (Request for reenlistment) and DD Form 4 (Enlistment/ Reenlistment Document – Armed Forces of the United States), with DD Form 256A (Honorable Discharge Certificate) and Oath of Reenlistment Certificate, each dated 4 Feb 1997 * Permanent Orders Number 288-00048, issued by Headquarters, Fort Riley, Fort Riley, KS on 15 October 1997 * Telephone or Verbal Conversation Record, dated 2 February 1998 * Request for Discharge with DD Form 458 (Charge Sheet), chain of command recommendations, and separation authority approval * DD Form 214, for the period ending 18 June 1998 * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 20 September 2007, with self- authored statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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. The applicant states when he was discharged, he was told his UOTHC discharge would be automatically upgraded to a general discharge after 6 months. He received the UOTHC discharge for going AWOL from 971230 through 98020. Prior to going AWOL, he was a good Soldier as indicated in his enclosures. He left his unit due to harassment from his First Sergeant; after 30 days, he turned himself in to military authorities at Ft. Knox, KY. 3. The applicant enlisted in the Regular Army on 17 January 1995 and reenlisted on 16 April 1997. 4. The applicant’s service records contain the following: * a DA Form 4384 (Commander’s Report of Inquiry/Unauthorized Absence) that shows why his commander thought he went AWOL * a DA Form 4187, dated 30 December 1997, which changed his status from present for duty to AWOL * a DA Form 4187, dated 2 February 1998, which changed his status from dropped from rolls to present for duty 5. Court-martial charges were preferred against the applicant on 4 February 1998. The Charge Sheet shows he was charged with violating Article 86 of the Uniform Code of Military Justice (UCMJ); specifically, being AWOL from on or about 30 December 1997 through on or about 2 February 1998. 6. The applicant consulted with counsel on 4 February 1998. He subsequently signed, in writing, an admission to being AWOL from or about 30 December 1997 through on or about 2 February 1998. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a bad conduct discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, 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. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was further advised that there is no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board for Correction of Military Records if he wished for a review of his discharge. He realized that the act of consideration by either board does not imply that his discharge would be upgraded. d. He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements. 7. The applicant signed a DA Form 31 (Request and Authority for Leave) on 4 February 1998, acknowledging he was being placed in an excess leave status pending the completion of his discharge processing. 8. The applicant’s commander recommended approval of his discharge request on 15 April 1998, in lieu of trial by court-martial, with a UOTHC discharge. 9. The separation authority approved the applicant's request for discharge on 29 April 1998, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a UOTHC Discharge Certificate. 10. The applicant was discharged on 18 June 1998, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. The DD Form 214 he was issued shows his service was characterized as UOTHC, and further shows in: * Item 18 (Remarks), the entries: * CONTINUOUS HONORABLE SERVICE 19950117-19970415 * IMMEDIATE REENLISTMENT THIS PERIOD – 19950117-19970415 * EXCESS LEAVE (CREDITABLE FOR ALL PURPOSES EXCEPT PAY AND ALLOWANCES)--134 DAYS: 19980205-19980618 * Item 28 (Narrative Reason for Separation), the entry "IN LIEU OF TRIAL BY COURT-MARTIAL" * Item 29 (Dates of Lost Time During this Period), “19971230-19980201” 11. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 12. The applicant provides the following for consideration: * Letter of Commendation from the U.S. Army Field Artillery Training Center, dated 27 January 1995, for being selected as an honor graduate * OSUT Graduation Diploma, dated 3 May 1995 * Certificate of Achievement for volunteering, dated 28 June 1996 * DA Forms 4187 that show he was promoted to PFC and SPC * DA Form 638 that shows he was recommended for an Army Commendation Medal for exceptionally meritorious service as a vehicle operator during Operation Joint Guard * Army Achievement Medal Certificate that shows he was awarded the Army Achievement Medal for meritorious service while deployed to Bosnia- Herzegovina in support of Operations Joint Endeavor and Joint Guard * Reenlistment packet * Permanent Orders Number 288-0048, issued by Headquarters, Fort Riley, Fort Riley, KS on 15 October 1997, which awarded him the Army Good Conduct Medal * Telephone or Verbal Conversation Record, dated 2 February 1998 provides no further information * Request for Discharge with DD Form 458 (Charge Sheet), chain of command recommendations, and separation authority approval 13. The Board should consider the applicant's service records, accomplishment, and request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct, and there were no errors found with the lost time displayed on his DD Form 214. 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): N/A 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018, 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. 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, Boards 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//