IN THE CASE OF: BOARD DATE: 21 August 2020 DOCKET NUMBER: AR20190005674 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he is a high school graduate. 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 12 March 2019, with self-authored statement * spouse's statement * high school diploma * Naval Aviation Supply Office Certificate of Completion * Department of the Army Certificate of Training (Basic Combat Training) * Lethal Weapons Training Certificate * School District of Cheltenham Township Proclamation Certificate * DA Form 2-1 (Personnel Qualification Record – Part II) * Orders 010-0241, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky on 10 January 2002 * DD Form 214 for the period ending 11 January 2002 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 has provided a high school diploma that predates his military service. This document is sufficient to administratively correct his DD Form 214 without action by the Board. The Board will address the applicant's character of service. 3. The applicant states: a. He served in the Army for one term and was honorably discharged. He re- enlisted to go to Germany but because the safety of his family was affected, he went absent without leave (AWOL). Early in his enlistment, he saw racism in small pieces but once he went further in his military career it got worse. b. There was a sergeant first class (SFC) that took him off of a positive path in his military career to see how far he could push him in an unprofessional manner. He was then and he still is a Muslim by culture and religion; the SFC saw fit to tell him when and how he could be Muslim in the U.S. Army. When he spoke up, it caused more problems and the SFC would lock the office doors with just the two of them present and the SFC would jump in his face and make him stand at parade rest while yelling and bumping into him in an aggressive manner. The SFC's actions made him hot and he spoke with other leaders that turned their cheeks. c. When he returned to the States, it was like a breath of fresh air knowing he would be promoted to the rank of specialist/E-4 after 18 months. He was in "top" condition mentally and physically, only to be sent back to the unit with the same SFC that treated him poorly. He was at Fort Sill, Oklahoma, and he had his family with him. He got promoted and was put in charge of the company gym. His wife was pregnant with their second child so there were a lot of appointments he needed to attend and the SFC then wanted to tell him when he could be a father too. He would tell his noncommissioned officer when his wife had appointments so they would be honored but one day they saw fit to check upon him. d. His privacy at home was invaded and he did not feel safe in Korea. He packed up his family and drove to Philadelphia to start his civilian life. He has since become a productive part of society, he has stayed out of trouble, and he has conformed to civilian life. He would not wish his experiences on any new enlisted Soldier and he asked that consideration be given to his circumstances. 4. The applicant enlisted in the Regular Army on 5 October 1995. He completed training as a quartermaster and chemical repairer. He reenlisted in the Regular Army on 7 November 1997. 5. Department of the Army (DA) Form 4187 (Personnel Action), dated 6 March 1998, shows the applicant was reported as absent without leave (AWOL), on or about 3 March 1998. He was dropped from the rolls as a deserter on 1 April 1998. He remained absent in desertion until he was apprehended by civil authorities and returned to military control, on or about 15 November 2000. 6. Court-martial charges were preferred against the applicant on 22 November 2000, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 3 March 1998 until on or about 15 November 2000. 7. The applicant consulted with legal counsel on or about 22 November 2000. 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 an under other than honorable conditions 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 advised he could submit any statements he desired in his own behalf. His request shows he made an election not to submit a statement. 8. The separation authority approved the applicant's request for discharge on 13 December 2001 and directed his reduction to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 9. The applicant was discharged on 11 January 2002, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court- martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and 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 Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge on 5 November 2003. The ADRB determined his discharge was both proper and equitable. 12. The applicant provides a supporting statement from his spouse, attesting to the type of treatment he received while he was in the Army. 13. The Board should consider the applicant's statement 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 Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and 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. 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. 2. The Board concurred with the corrections described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by making the corrections described in Administrative Note(s) below. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the character of service the applicant received upon being discharged. 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): A review of the applicant's record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 11 January 2002 is missing important entries that affect his eligibility for post-service benefits and contains an error in item 15b (High School Graduate or Equivalent). As a result, amend the DD Form 214 by a. correcting item 15b to show "Yes." b. deleting from item 18 (Remarks) the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE" and adding the entries: * IMMEDIATE REENLISTMENT THIS PERIOD: 951005 TO 971106 * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 951005 UNTIL 971106 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. 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. 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. c. Chapter 10 states 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 would normally be furnished to an individual who was discharged for the good of the service. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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) AR20190005674 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190005674 6 ABCMR Record of Proceedings (cont) AR20190005674 5