IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20190000193 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant states he was an outstanding Soldier who received the Army Good Conduct Medal, National Defense Service Medal, and Army Service Ribbon. Unfortunately, his child was put into an induced coma and had to have a trachea tube inserted. He was given 2 Red Cross emergency leaves, but needed to leave again with a request from his son’s doctor. He was denied another request for emergency leave, and that is why he went absent without leave (AWOL). He is trying to get his dignity back, because he knows he successfully served his country. He served for 3 years and 10 months, and was just a few months away from reenlisting. 2. On 13 November 1992, he enlisted in the Regular Army for a period of 4 years. 3. On 19 July 1996, court-martial charges were preferred against the applicant for being AWOL from on or about 2 May to 16 July 1996. 4. On the same date, he voluntarily requested a discharge in lieu of trial by court- martial, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provisions of chapter 10, AR 635-200. He elected not to submit statements in his own behalf. b. His chain of command recommended approval of his discharge under other than honorable conditions. c. The separation authority approved the applicant’s request to be discharged in lieu of trial by court-martial and directed he be discharged under other than honorable conditions. 5. On 4 December 1996, the applicant was discharged accordingly. He completed 3 years, 10 months and 8 days of net active service. He had lost time from 2 May to 15 July 1996. The applicant was awarded or authorized the: * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon 6. On 13 March 1998, the Army Discharge Review Board notified the applicant that he was properly and equitably discharged. His request for a change in the character and/or reason of his discharge was denied. 7. The record contains no indication of procedural or other errors that would tend to have jeopardized the applicant’s rights. 8. Army Regulation 635-200 states that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge in lieu of trial by court-martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 9. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense 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 discussed his statement concerning the circumstances of his AWOL, the totality of his record, the nature of his misconduct and application of DoD guidance. The Board determined that the character of service was too harsh and that clemency was warranted in this case. 2. After reviewing the application and all of the supporting documentation, the Board determined that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : 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 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 on 4 December 1996 to reflect a General, under honorable conditions character of service. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was 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 generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. 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. d. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 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 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 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. 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. ABCMR Record of Proceedings (cont) AR20190000193 3 ABCMR Record of Proceedings (cont) AR20190000193 4