ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 14 November 2019 DOCKET NUMBER: AR20190009078 APPLICANT REQUESTS: In effect, his under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or 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 16 May 2019, with self-authored statement * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 16 May 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 16 September 1998 * two certificates of appreciation, dated 28 October 2017 and 28 April 2018 * Certificate of Training, dated 6 April 2018 * three character reference letters * a letter from the Police Department, dated 13 May 2019 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. During his military career, he had difficulties controlling his emotions and impulsiveness. He never got into any trouble until his mother was diagnosed with cancer. He had no one to talk to for proper guidance, or any alternative options given to him when he turned himself in at Fort Hood. They did not want to talk to him or hear his reason for going absent without leave (AWOL). Since then, he has been a successful business owner, working closely with military personnel and Soldiers, giving guidance and advice. He owns 3 barber shops and a barber school; he works closely with active duty military and veterans. b. Based on his prior service, he is proud that he completed two enlistments with honorable discharges. He is not proud of his final discharge and would like an upgrade to continue to succeed in his community and become a better person. To stand before many Soldiers giving speeches and to know that his discharge is other than honorable makes him feel not qualified to continue with his current characterization. c. His adopted mother was diagnosed with cervical cancer. This news devastated him and put him in a different state of mind, because she was the only person to show him love and guide him in the right direction. He couldn't lose her, so he went AWOL thinking that he could make a difference. d. He wants to advance in his field of work and continue to help U.S. Armed Forces, and help the many corrupt Soldiers do the right thing and make right decisions, unlike himself. He speaks with lots of military and civilian personnel daily. He feels that if he can better himself and continue telling his story, it will have a great impact on many Soldiers making wrong decisions today. He really would like to have his discharge upgraded, because in his 9 years of enlistment, he never got into any trouble until he made a wrong decision. He regrets what he did, because it didn't justify the problem. Because his aunt who adopted him still died, and he was left behind with a bad discharge. He turned himself in hoping he would be given a second chance but all he got was the boot. e. He volunteers helping feed the homeless, talking to high school students about making the choice to become part of the U. S. Armed Forces. He speaks at conferences and city council meetings, providing youth programs for the Central Texas area and surrounding cities. He will continue to be a positive influence on people and make the right decisions. 3. The applicant enlisted in the Regular Army on 1 October 1987. He was honorably discharged on 7 April 1991 for immediate reenlistment. He reenlisted in the Regular Army on 8 April 1991. He was again honorably discharged on 18 October 1994 for immediate reenlistment. He reenlisted in the Regular Army on 19 October 1994, and was promoted to the rank/grade of staff sergeant/E-6 on 1 July 1997. 4. Court-martial charges were preferred against the applicant on 3 June 1998 for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL from his unit in South Korea, from on or about 1 November 1997 through on or about 27 May 1998. 5. The applicant consulted with legal counsel on 3 June 1998. 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 (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. He stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service. 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 for Correction of Military Records 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 in his own behalf; however, he elected not to submit any statements. 6. The applicant’s immediate commander recommended approval of his discharge request on 20 August 1998, in lieu of trial by court-martial, with a UOTHC discharge. His commander listed the following as Factual Data: "Soldier is charged with one specification of AWOL totaling 297 days, apprehended by civilian authorities." 7. The separation authority approved the applicant's request for discharge on 26 August 1998, 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 UOTHC Discharge Certificate. 8. The applicant was discharged on 16 September 1998, 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 he was discharged in the rank/grade of private/E-1, his service was characterized as UOTHC, and further shows in: * Item 12c (Net Active Service This Period), he was credited with completing 10 years, 4 months, and 19 days of net creditable active service * Item 12f (Foreign Service), he was credited with completing 3 years, 11 months, and 7 days of service * Item 18 (Remarks), includes the entry "Continuous Honorable Active Service: 19870911-19910407//Immediate reenlistment this period 19910408-19941018, 19941019-19971031//" * Item 29 (Dates of Lost Time During this Period), "19971101-19980526" 9. 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. 10. The applicant provides: a. Two Operation Stand Down [homeless veteran program] certificates of appreciation; and a barber train the trainer certificate of training b. Three character letters attesting, he is a successful business owner; supports local community to improve the lives of underprivileged children and struggling adults; is a productive citizen; a loyal family friend; a decent, hardworking and trustworthy person; a community volunteer, who mentors at a local high school, hurricane relief efforts, back to school drives, and provides guidance to active and retired military personnel. c. A Letter from the Killeen Police Department showing he does not have any arrests or police records on file with their office. 11. The Board should consider the applicant's request, and 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 DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service to include previous honorable service, the nature of his misconduct and apprehension, the reason for his separation and whether to apply clemency. The Board found an in-service mitigating factor and the applicant provided evidence of his post- service achievements and letters of reference in support of his community and fellow veterans. Based on a preponderance of evidence, the Board determined that clemency was warranted and that the applicant’s character of service should be upgraded. The Board concurs with the corrections stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the corrections stated in the Administrative Note(s) that follow, the Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period of service ending 16 September 1998 to reflect in item 24 (Character of Service) – “General, under honorable conditions” vice “Under other than honorable conditions.” 11/29/2019 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. 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 16 September 1998, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by: a. deleting from item 18 (Remarks) the entry "Continuous Honorable Active Service: 19870911-19910407"; and b. adding to item 18 the entries "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 871001 UNTIL 941018." c. Adding to item 13 (Decoration, Medals, Badges, Citations….) – “Korea Defense Service Medal”. 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//