ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 October 2019 DOCKET NUMBER: AR20190004330 APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable 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), dated 21 February 2019, with self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 14 January 2004 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, in effect, a. He was given a "general under other than honorable conditions" and is requesting an upgrade. His health conditions caused him to make wrong decisions. He does not wish to receive Department of Veterans Affairs (VA) benefits, or any other benefits related to service, since he feels he did not earn them. He is requesting an upgrade so his discharge no longer interferes with his career path in law enforcement. b. He thought he was in decent shape and free of any health concerns. However, when he arrived at Fort Knox, Kentucky, he started having stomach problems and began to get sick. He asked to see the doctor to treat his stomach conditions, but there was no help. He continued to get worse and being a young stupid kid, he made the mistake of leaving base in the middle of the night. His stomach problems were due to a bleeding ulcer and severe dehydration; he couldn't hold down food or water. Every time he ate or drank, he threw up. He entered into service with the expectation of completing his service and having a long career in the Army; however, his body couldn't handle the situation. Although he made a mistake and didn't go through proper procedures, he doesn't feels that warrants a lifetime black mark on his record. c. He has been driving commercial trucks since he was discharged. He was married in 2009 and they have two sons. He is currently studying criminal justice at Southern New Hampshire University with a 3.9 grade point average, and planning to graduate in February 2020. He is an upstanding member of his community and he is trying to become a sheriff's deputy in. He has always regretted his separation and how it happened. He wishes to receive an upgrade so he can have a better life for his family and serve his community in every way possible. 3. The applicant enlisted in the Regular Army on 27 August 2003. 4. The applicant's service records contain three DA Forms 4187 (Personnel Action), showing the following duty status changes: * his duty status was changed from present for duty (PFD) to absent without leave (AWOL) when he was reported AWOL from his training unit at Fort Knox, Kentucky, at 2335 hours on 15 September 2003 * his duty status was changed from AWOL to dropped from the roles (DFR) on 15 October 2003 * his duty status was changed from DFR to attached/PFD, when he was apprehended by civilian authorities and returned to military control on 16 December 2003 5. Court-martial charges were preferred against the applicant on 5 January 2004, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with absenting himself without authority from his organization at Fort Knox, Kentucky, from on or about 15 September 2003 through on or about 16 December 2003. 6. The applicant consulted with legal counsel on 5 January 2004. 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 (Active Duty Enlisted Administrative Separations), 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 (ADRB) or the ABCMR if he wished for a review of his discharge. He realized that the act of consideration by either board does not imply that his discharge would be upgraded. d. He was advised he could submit any statements he desired on his own behalf. He elected not submit a statement. 7. The applicant's commander recommended approval of his request for discharge on 6 January 2004, under the provision of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and recommended that he be issued a UOTHC discharge. 8. The separation authority approved the applicant's request for discharge on 8 January 2004, 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 the issuance of a DD Form 794A (UOTHC Discharge Certificate). 9. The applicant was discharged on 14 January 2004, 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. 10. 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. 11. The applicant's record is void of evidence that he suffered from, or sought treatment for, any medical conditions during his period of service prior to discharge. 12. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 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 (circumstances regarding the period he was absent without authority), his record of service, the nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The record contains no evidence corroborating his claim that he became ill. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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. 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 Service Discharge Review Boards 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190004330 5 1