ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 September 2019 DOCKET NUMBER: AR20190000327 APPLICANT REQUESTS: The applicant requests: * an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge or a general under honorable conditions discharge * his rank/grade to reflect sergeant (SGT)/E-5 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Memorandum, from U.S. Army Trial Defense Service, Friedberg Field Office, Germany, (Applicant’s Defense Counsel), dated 10 September 2003 * Letter from 1LT B.H., dated 21 October 2003 * DA Form 2166-8 (NCO (Noncommissioned Officer) Evaluation Report * Applicant’s Army Active Duty Identification Card/Common Access Card (CAC) * Photograph of Soldier in Uniform (presumed to be the applicant) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 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's military records are not available to the Board for review. However, there were sufficient documents remaining in the record to conduct a fair and impartial review of this case. This case is being considered on his service record, which primarily consist of DD Forms 4 (Enlistment/Reenlistment Document Armed Forces of the United States), DA Form 2-1 (Personnel Qualification Record – Part II), two DD Forms 214, and data from the Human Resources Command (HRC), Soldier Management System (SMS). 1. 3. The applicant states his discharge is not a true representation of his character of service. At the time of his discharge he could not accept a board because of family matters that he had to return home to attend to. He feels that if he would have had a chance to present himself to the board the outcome of his discharge would have been different. This was an isolated incident, this is the only blemish on his military record. He was a proud Soldier and is now a proud Army Veteran. He wants his final discharge to match that. The fact that his unit never demoted him should speak volumes to his character. He would also like his discharge to reflect his true rank/grade of sergeant (SGT)/E-5. 4. Having prior enlisted service in the South Carolina Army National Guard (SCARNG), on 10 June 1998, the applicant enlisted in the Regular Army for a term of 3 years. On 3 October 2000, he was honorably discharged for immediate reenlistment. On 4 October 2000, he reenlisted in the Regular Army for a term of 4 years at the rank/grade of specialist (SPC)/E-4. On 1 October 2001, he was promoted to sergeant (SGT)/E-5. 5. His record is void of a separation packet. His record shows on 3 October 2003, the applicant was discharged. He completed 5 years, 3 months, and 24 days of net active service this period with 3 months, and 28 days of Foreign Service. His DD Form 214 shows: * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): illegible with the exception of an award for service in Kuwait and he was awarded the Air Assault Badge * Item 23 (Type of Separation): Discharge * Item 24 (Character of Service): Under Other Than Honorable Conditions * Item 25 (Separation Authority): illegible * Item 26 (Separation Code): JKD * Item 27 (Reentry Code): 3 * Item 28 (Narrative Reason for Separation): illegible * Item 29 (Dates of Time Lost During This Period): dates illegible 6. The Human Resources Command, Soldier Management System (SMS) is a web- based collection of data, applications, and tools to assist Career Managers and other Human Resource Personnel in supporting Active Army, Army Reserve, and Army National Guard Soldiers, veterans, retirees, family members, and other stakeholders. It shows that on 3 October 2003, the applicant was involuntarily discharged for “Misconduct – Serious Offense – AWOL (absent without leave). Misconduct – Serious Offense is a discharge under the provisions AR 635-200, Chapter 14, paragraph 14- 12c(1). 7. The applicant provides: 1. a. A memorandum, from USATDS, Friedberg, Germany (Applicant’s Defense Counsel), subject: [Applicant] – Involuntary Separation Action Under Army Regulation (AR) 635-200, Chapter 14-12c, Commission of a Serious Offence, dated 10 September 2003, which stated: (1) The applicant waived consideration before an administrative board and would likely receive an under other than honorable conditions discharge. The applicant understood and was willing to live with it. The discharge was a better disposition than a court-martial, originally contemplated by the chain of command. Certain facts came to light which affected the command’s opinion. (2) The applicant’s wife of one year and three children resided in South Carolina and they were taking care of his 53 years old father who suffered from post-traumatic stress disorder from a tour in Vietnam, cervical spine disease, and diabetes. In 2001, his father had a pace maker installed and was receiving disability payments from the U.S. Marine Corps. The applicant used his last Army paycheck to rent his father an apartment because his father was evicted from his residence one week after the applicant went AWOL. (3) The applicant’s children were ages 8, 7, and 3 years of age. His wife was a member of the Army National Guard of the United States (ARNGUS) and was activated to fill slots of Soldiers deployed to Iraq. The applicant would return home to take care of his children and his father while his wife fulfilled her ARNGUS obligations. (4) On 2 January 2003, the applicant left the Army without authority. During the first few months he was in regular contact with the unit. Prior to this period, the applicant was granted two leave extensions because of his ailing father. His command was working towards getting the applicant a compassionate reassignment to Fort Jackson, SC, but it was denied. They also attempted to process him under a hardship discharge but it never materialized. The applicant wrongly decided to go AWOL and it ended his nearly seven-year career. b. Letter from 1LT B.H., dated 21 October 2003, attesting to the applicant’s professionalism and character as a Soldier. He explained that the applicant was forced to return home to attend to familial matters due to circumstances beyond his control. He argues that the applicant should have been retained as a noncommissioned officer (NCO) and continue a promising career in the SCARNG. c. DA Form 2166-8 (NCO Evaluation Report) from period October 2001 through March 2002, shows: * Part III – Duty Description: He served in the principal duty title as a squad leader in the military occupational specialty of 11C (Indirect Fire Infantryman) * Part IV - Army Values/Attributes/Skills/Actions * * Part IVa: - Army Values: "YES" in all categories * Part IVb - Values/NCO Responsibilities: two excellence and three success ratings Part V - Overall Performance and Potential * Part Va – Rater. Overall potential and/or positions of greater responsibility: Fully Capable * Part Vb – Rater. List 3 positions in which the rated NCO could best serve the Army at his/her current or next higher grade: Squad Leader, Fire Direction Computer, Recruiter * Part Vc and d – Senor Rater. Overall Performance and overall potential for promotion and/or service in positions of greater responsibility: rated 2 out of 5 * Part Ve – Senior Rater Bullet Comments: Promote with peers, send to Infantry Mortar Leaders Course, continue to groom for positions of greater responsibility, and solid Soldier; emulates a professional NCO d. Applicant’s Army Active Duty Identification Card/Common Access Card (CAC) shows that it expired on 3 October 2003. c. A photograph of Soldier in Uniform with the applicant’s last name (presumed to be the applicant), which shows affixed to the uniform are the Expert Infantry Patch, the Airborne Patch, and the Air Assault Patch. 8. The applicant states his discharge is not a true representation of his character of service. At the time of his discharge he could not accept a board because of family matters that he had to return home to attend to. He feels that if he would have had a chance to present himself to the board, the outcome of his discharge would have been different. His record shows that he had time lost (DD Form 214 dates illegible) and on 3 October 2003, he was involuntarily discharged for "misconduct – serious offense- AWOL" (period unknown). The entries which are legible on the applicant’s DD Form 214 for period ending 3 October 2003 are consistent with a discharge under the provisions of AR 635-200, Chapter 14, paragraph 14-12c(1). 9. AR 635-200, Chapter 14 (Misconduct), Section III, paragraph 14-12c, in effect at the time, was a separation for commission of a serious offense. Further paragraph 14- 12c(1) was specifically for a separation of an absentee returned to military control from a status of absent without leave or desertion. a. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14. 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 a. been awarded a personal decoration or if warranted by the particular circumstances of a specific case. b. When a soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 10. AR 635-5-1 (Separation Program Designator (SPD) Codes), provided SPD code "JKD" was the appropriate code to assign enlisted Soldiers who were involuntarily discharged for misconduct under the provisions of AR 635-200, paragraph 14-12c(1). 11. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers. The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established RE code 3 as the proper RE code to assign to Soldiers separated with SPD code JKD. 12. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD 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 absence of a separation packet, the nature of his misconduct, the letters of reference, his declination of an administrative separation board and the reason for his separation (serious misconduct). The Board found insufficient evidence of in-service mitigation to overcome the 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 the applicant received and the grade he held upon separation were not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 1. 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, except for the corrections stated in the Administrative Note(s) that follow, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. X CHAIRPERSON 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. Based on the applicant’s completion of training, award of an MOS and return to his Reserve Component unit of assignment, item 24 (Character of Service) of the DD Form 214 for the period of service ending 19970307 is amended to reflect “Honorable” vice “Uncharacterized.” 2. Based on the applicant’s immediate reenlistment recorded in item 18 (Remarks) on the DD Form 214 for the period of service ending 3 October 2003, the following 1. statement is added to item 18 - “Continuous honorable active service from 19980610 until 20001003.” 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 Army Board for Correction of Military Records (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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. Chapter 14 of the regulation dealt with separation for various types of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. 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. a. Paragraph 14-12c provided for the separation of a Soldier due to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related- offense under the Manual for Court-Martial. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. b. Paragraph 14-12c(1) provided, an absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense. c. 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. d. 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. e. When a soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. a. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. SPD code "JKD" was the appropriate code to assign enlisted Soldiers who were involuntarily discharged for misconduct under the provisions of AR 635-200, paragraph 14-12c(1). 4. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers. The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established RE code 3 as the proper RE code to assign to Soldiers separated with SPD code JKD. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant.