BOARD DATE: 13 August 2020 DOCKET NUMBER: AR20190004222 APPLICANT REQUESTS: The applicant requests correction of his characterization of service from under other than honorable conditions to general, under honorable conditions or to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 states he was promised lots of things, including that he would be able to go home to see his daughter when she was born. However, that did not happen. He was also told he would receive the rank of E-3 for getting his uncle to join. That did not happen. He broke both of his legs and signed a form to be discharged to have a life with his family. He took leave and was told when he returned he had to start over or wait and be medically discharged. He did what he had to for his family. His uncle cannot function right and his guilt eats him up inside. It has been 15 years and he cannot sleep, he has stress, anxiety, and he drinks all the time. He needs help. He always wanted to serve this country. He just has not been able to get over the promises that were not kept and the way it has affected his medical disabilities. 3. He enlisted in the Regular Army on 22 May 2003 for 6 years, training in an infantry military occupational specialty (MOS), and in pay grade E-2. 4. On 27 August 2003, he left his unit at Fort Benning, GA, in an absent without leave (AWOL) status. There is no evidence that he completed training or was awarded an MOS. On 29 September 2003, he surrendered to military authorities at Fort Sill, OK. 5. The complete facts and circumstances surrounding the applicant’s discharge process are not available for review with this case. However, his record contains a DD Form 214 that was prepared at the time of separation that shows on 22 December 2003, he was separated with an under other than honorable conditions discharge, in pay grade E-1. He had completed 5 months and 27 days of active military service. His DD Form 214 also shows in: * (Separation Authority), Army Regulation (AR) 635-200, chapter 10 * (Separation Code), KFS * (Reentry Code), RE-4 * (Narrative Reason for Separation), In Lieu of Trial By Court-Martial * (Signature of Member Being Separated), shows “Soldier not available to sign” 6. The applicant's record is void of the specific facts and circumstances surrounding his discharge; however, based on the fact that he was AWOL from 27 August to 29 September 2003, he would have been charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge. 7. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. 8. The applicant contends that promises were made to him that were not kept. He was promised that he would be able to go home to see his daughter when she was born and that he would receive the rank of E-3 for getting his uncle to enlist. The promises were not kept. He broke both of his legs and signed a form to be discharged to have a life with his family. He took leave and was told when he returned he had to start over or wait and be medically discharged. His uncle cannot function right and guilt eats him up inside. It has been 15 years and he cannot sleep, he has stress, anxiety, and he drinks all the time. He needs help. He always wanted to serve this country. He just has not been able to get over the promises that were not kept and the way it has affected his medical disabilities. 9. Regarding the applicant’s contentions, neither the applicant nor the available evidence provides evidence that shows he was made promises that were not kept to include a promotion or leave when his daughter was born. Nor is there evidence that indicates he had any medical conditions that required medical processing. 10. It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. He provided no evidence that would indicate the contrary. 11. He completed approximately 5 months and 27 days of his 6 year service obligation. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity; the applicant had limited service, no wartime service and insufficient independent, corroborating evidence of mitigating circumstances for the misconduct. Additionally, the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is appropriate. 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): Not applicable 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. 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 based on 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// ABCMR Record of Proceedings (cont) AR20190004222 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190004222 5 ABCMR Record of Proceedings (cont) AR20190004222 4