ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 7 June 2019 DOCKET NUMBER: AR20190001944 APPLICANT REQUESTS: in effect, that his under other than honorable conditions (UOTHC) discharge be upgrade to a more favorable discharge. 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 dated 18 December 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 30 December 1996 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 he was transferred to his first permanent duty station at Fort Hood, TX after he completed his advanced individual training (AIT); however, his records were not transferred. This caused him a financial hardship; he was staying in off-base housing in Copperas Cove, TX but was forced to send his family back home to CA because he couldn’t support them. He took out several loans, in hopes his pay would be corrected but he incurred more financial debt. While in CA, he was arrested and returned to the military. He was released from Fort Sill, OK, only to be charged with being absent without leave (AWOL). If he was not arrested, he would never have been considered AWOL. 3. The applicant enlisted in the Regular Army on 11 April 1994. 4. The applicant was reported as AWOL, by his unit at Fort Hood, TX, on or about 30 September 1995. He remained AWOL until on or about 1 April 1996, when he was arrested by civilian authorities in Oakland, CA and returned to military control. 5. The applicant’s service records contain: a. Orders Number 122-13, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, which shows he was assigned to Fort Sill, OK after being returned to military control on 1 April 1996. b. DA Form 4384 (Commander’s Report of Inquiry/Unauthorized Absence) and DA Form 4187-E (Request For: Duty Status Change), dated 25 June 1996, which show he departed Fort Sill, OK in an AWOL status, on or about 5 April 1996. c. DA Form 4137-E, which shows he was returned to military control after being apprehended by civilian authorities in Alameda, CA, on 28 October 1996. 6. Court-martial charges were preferred against the applicant on 31 October 1996 for violating Article 86 of the Uniform Code of Military Justice (UCMJ). The DD Form 458 (Charge Sheet) shows he was charged with being AWOL from his organization at Fort Hood, TX, from on or about 30 September 1995 through on or about 1 April 1996, and from on or about 5 April 1996 through on or about 28 October 1996. 7. The applicant consulted with counsel on 31 October 1996. 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 or the Army 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 did not imply that his discharge would be upgraded. d. He was advised he could submit any statements he desired in his own behalf. He did not wish to submit a statement in his own behalf. 8. The applicant requested to be placed on indefinite excess leave without pay and allowances on 31 October 1996, until his request for discharge could be processed. 9. The applicant's commander recommended approval of his request for discharge on 21 November 1996, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. Specifically, she noted that he had been charged with two specifications of being AWOL totaling 390 days, and being apprehended by civilian authorities. 10. The applicant’s discharge request was reviewed by the Criminal Law Division, and there were no legal objections to further processing on 26 November 1996. 11. The separation authority approved the applicant's request for discharge on 26 November 1996, 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 that his service be characterized as UOTHC. 12. The applicant was discharged on 30 December 1996, 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), includes the entries: * EXCESS LEAVE (CREDITABLE FOR ALL PURPOSES EXCEPT PAY AND ALLOWANCES) – 62.0 DAYS: 19961031-19961230 * MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE * Item 28 (Narrative Reason for Separation), the entry "IN LIEU OF TRIAL BY COURT-MARTIAL" * Item 29 (Dates of Time Lost During this Period), UNDER 10 USC 972: 19950930-19960331; 19960405-19961027 13. 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. 14. The applicant petitioned the ADRB for a review and possible upgrade of his discharge. After careful review and consideration on 25 August 1999, the ADRB found his discharge was both proper and equitable and denied his petition for relief. 15. The Board should consider the applicant's service records, accomplishments, and request 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 discussed the frequency and length of his absences, his statement regarding the circumstances of his AWOLs and the application of clemency policy guidance. The Board determined that there was insufficient mitigation for his misconduct and that the character of service he received was not in error or unjust and to not apply clemency in this case. 2. After reviewing the application and all supporting documents, the Board determined 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): 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. ABCMR Record of Proceedings (cont) AR20190001944 4 1