IN THE CASE OF: BOARD DATE: 12 November 2020 DOCKET NUMBER: AR20190009801 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * continuance of application * divorce documents FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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: a. He went into basic training and was given leave in the middle of basic training for Christmas. He was married when he joined the military and his wife had cheated on him and asked for a divorce. b. He filed for divorce with a private attorney. His attorney told him he would not have to be present in order to get divorced. He returned to the Army to complete his basic training. He was then shipped to his first duty station. c. He received a phone call at his duty station from his attorney stating his divorce hearing had been set three different times and his ex-wife never appeared. He was informed there was going to be another hearing scheduled and if neither one of them were present for the hearing they would still be married, but the attorney would keep his money. d. He informed his squad leader, his platoon sergeant, and his company commander about the hearing. None of them informed the applicant he could go to the Judge Advocate General's (JAG) office or that he could speak to a military attorney. e. The applicant was asked about the possibility of getting leave. He requested leave several times and it was denied. He was told he would miss crucial training. That was the reason he was absent without leave (AWOL). He left to get his divorce. He provided his divorce documentation to his chain of command. f. Once the separation process began, he was not provided an attorney nor adjudication or administrative legal redress. He was not given due process prior to his discharge, which was in violation of his 1st, 5th, and 13th amendment rights. He had the right to due process under the U.S. Constitution and this was unjust. The Board should consider his application because his rights were violated. 3. On 22 September 2001, the applicant enlisted in the Army Reserve Delayed Entry Program and entered active duty on 17 October 2001 for a period of 5 years. 4. On 24 September 2002, his duty status was changed from present for duty (PDY) to AWOL. On 24 October 2002, his duty status was changed to dropped from rolls (DFR) and he was placed in a deserter status. Charges were preferred against him for being AWOL from 24 September to 24 October 2002. 5. The applicant provided court documents showing he was divorced on 21 October 2002 in the state of Missouri. 6. A DD Form 616 (Report of Return of Absentee) dated 25 November 2002 shows the applicant was returned to military control on 2 November 2002. The applicant’s duty status was changed from DFR to PDY on 2 December 2002. 7. On 13 February 2003, the applicant accepted nonjudicial punishment (NJP) for being AWOL from 24 September 2002 to 2 December 2002. 8. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) shows he was flagged on 1 April 2003 for elimination processing. 9. On 6 May 2003 the applicant was notified of his commander’s intent to separate him under the provisions of Army Regulation 635-200, chapter 14-12b for patterns of misconduct with a recommended characterization of service of general, under honorable conditions for: * being AWOL from 24 September 2002 to 2 December 2002 * failing to be at his appointed place of duty on 18 and 19 March 2003 * being found drunk on duty on 18 March 2003 a. On 7 May 2003, the applicant and his military attorney submitted an election of rights where he acknowledged he had been notified of the pending separation action against him and had been advised by consulting counsel of the basis for the contemplated action, understood his available rights, that he was not eligible for consideration of his case before an administrative separation board, may encounter prejudice in the civilian sector due to his characterization of service, and elected not to submit statements on his own behalf. b. An undated memorandum shows his immediate commander submitted the recommendation for separation under misconduct for being AWOL from 24 September 2002 to 2 December 2002, failing to be at his appointed place of duty on 18 and 19 March 2003, and being found drunk on duty on 18 March 2003. The recommendation indicates a copy of the medical examination and mental status evaluation is enclosed with the separation proceedings, however, they are not in the available records to provide to the board. c. The chain of command recommended approval of the separation with a general under honorable conditions discharge in an undated endorsement. The separation packet received a legal review and was found legally sufficient and on 9 March 2011, the appropriate separation authority approved the recommendation with a characterization of service of under honorable conditions (general). 10. On 2 June 2003, the applicant was discharged accordingly. His service was characterized as under honorable conditions (general). He completed 1 year, 5 months, and 6 days of his 5-year contractual obligation. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he has 1 year, 2 months, and 24 days of Foreign Service was awarded or authorized the: * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar * Marksman Marksmanship Qualification Badge with Grenade Bar 11. In reaching its determination, the Board can consider the applicant's petition, his service record, his post service accomplishments, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 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 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the Army Board for Correction of Military Records (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 14, paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. (1) The separations procedures required an administrative board procedure to be used, however, the notification procedures were authorized if the characterization of service under other than honorable conditions was not warranted. Upon notification procedures being executed the commander was to submit the "commanding officer's report" to be endorsed through the intermediate chain of command to the separation authority. (2) The separation authority may direct a general discharge if such is merited by the Soldier’s overall record Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. 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 on the basis of 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) AR20190009801 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1