BOARD DATE: 24 October 2019 DOCKET NUMBER: AR20190005529 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from under other than honorable conditions to general, under honorable conditions. 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 (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 told after he had been discharged for 3 years his characterization of service would be changed to general. 3. On 1 September 1999, the applicant enlisted in the Regular Army for 4 years. 4. His Personnel Qualification Record shows he left his unit at Fort Bragg, NC, in an absent without leave (AWOL) status on 16 October 2000, he was dropped from Army rolls on 16 November 2000, and he was returned to military control at the Personnel Control Facility, Fort Knox, KY, on 20 December 2000. 5. On 29 December 2000, court-martial charges were preferred against the applicant for being AWOL from 16 October through 20 December 2000. 6. On 29 December 2000, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge if the request were approved, and of the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He elected not to submit a statement on his own behalf. Additionally, he acknowledged he understood there was no automatic upgrading or automatic review of a less than honorable discharge by any Government agency or the ABCMR. He understood that if he desired a review of his discharge, he must apply to either the Army Discharge Review Board (ADRB) or the ABCMR, and that the act of consideration by either board does not imply that his discharge would be upgraded. 7. On 7 February 2002, the applicant’s immediate commander recommended approval of the applicant’s request with the issuance of an under other than honorable conditions discharge. 8. On 12 February 2002, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial, with an under other than honorable conditions discharge, and reduction to pay grade E-1. 9. On 12 February 2002, the applicant was discharged under the provisions of chapter 10, AR 635-200, in lieu of court-martial. His DD Form 214 shows he completed 2 years, 2 months, and 27 days of net active service that was characterized as under other than honorable conditions. His dates of time lost are listed as 16 October through 19 December 2000. 10. There is a 1 year, 3 month, and 7 day gap between the date of his return to military authorities from being AWOL in November 2000 and his separation date in February 2002. It is also unclear what was occurring doing this period of time. 11. The applicant’s contend he was told his characterization of service would be upgraded to general after 3 years. However, at the time of separation he acknowledged he understood he had the option of applying to the ADRB within that board's statute of limitations, or to the ABCMR for an upgrade of his discharge. The Board decides each case individually upon its own merits. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. 12. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. 13. The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10, AR 635-200, are voluntary requests for discharge in lieu of trial by court- martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 14. In reaching its determination, the Board can consider the applicant’s contentions and his service record 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, 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) from 16 October through 20 December 2000. 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. There is no provision of regulation or law for an automatic upgrade of a under other than honorable discharge, or any other discharge, after 3 years. 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. 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. 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) AR20190005529 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190005529 5 ABCMR Record of Proceedings (cont) AR20190005529 4