ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 24 October 2019 DOCKET NUMBER: AR20190003723 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060000814 on 27 October 2006. 3. The applicant states his mother had fallen ill so he requested a hardship. He spoke with his First Sergeant and it was granted. The Sergeant that was over him fought against it but he had already turned all of his military stuff in, filled out the paperwork, and left. He had no idea it was changed and he was now AWOL. He turned himself in and because he was done wrong in such a manner, instead of a dishonorable discharge he received an UOTHC. His mother is deceased now. 4. On 9 February 1995, the applicant enlisted in the Regular Army for a period of three years at the age of 20. His record shows he completed initial entry training and was assigned to his first duty assignment in Fort Hood, TX. 5. On 20 November 1995, he received non-judicial punishment (NJP) for being absent without authority (AWOL) from 13 October 1995 to 17 October 1995. 6. On 12 March 1996, the applicant was charged for being AWOL from 27 December 1995 to 12 March 1996. 7. On 14 March 1996, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 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 provision of Army Regulation 635-200, chapter 10. He signed a request for discharge for the Good of the Service and indicated he would not submit statements in his own behalf or desire a physical evaluation prior to separation. 8. On 14 May 1996, the applicant’s commander recommended approval of her request and on 21 May 1996, the appropriate approval authority approved the applicant’s request for separation in lieu of court-martial and be furnished a UOTHC discharge. 9. On 12 June 1996, he was discharged accordingly; his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 1 months and 18 days of net active service with approximately 76 days AWOL. He was awarded or authorized: * National Defense Service Medal * Army Service Ribbon * Expert Marksmanship Qualification Badge with Grenade Bar * Sharpshooter Marksmanship Badge with Rifle Bar 10. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request 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. 11. The applicant contends he requested a hardship and his First Sergeant granted it. Neither the applicant nor his records provide evidence showing the awareness or the processing of a hardship discharge. His records show he voluntarily requested a chapter 10 in lieu of a court martial and elected not to submit a statement on his own behalf. He contends because he was done wrong he was given a UOTHC as opposed to a dishonorable discharge. Paragraph 3 of the applicants request for discharge in lieu of trial by court martial shows the applicant initialed acknowledging he would receive an UOTHC if his request was approved. He completed 1 year, 1 months and 18 days of his 3 year service obligation 12. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements 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, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the nature of his misconduct and the reason for his separation. The Board noted that he absented himself from duty without authority (AWOL) on two occasions, the second for 71 days. The Board understands his statement that he was AWOL because his mother was dying. Under those circumstances, he could have requested authorized absence through the Red Cross or the Chaplain. There is no evidence that the applicant took correct action to secure authorized absence through these means. The Board noted that the applicant had the benefit of counsel and voluntarily requested discharge in lieu of court-martial with the understanding that it could result in a discharge under other than honorable conditions. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 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. X 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. 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 635-200 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. 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 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. //NOTHING FOLLOWS//