IN THE CASE OF: BOARD DATE: 27 February 2020 DOCKET NUMBER: AR20190013031 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to general, under honorable conditions. He also requests an opportunity to personally appear before the Board. 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 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080001230 on 10 April 2008. 3. The applicant states he was harassed by his staff sergeant during the last 6 months of service and this is the sole reason he went absent without leave (AWOL). He tried speaking to his platoon sergeant, but he refused to listen. He has witnesses, if needed. He is tired of being embarrassed because of something someone else caused. 4. On 14 March 2004, the applicant enlisted in the Regular Army for 4 years. He was trained in and awarded military occupational specialty 92A (Automated Logistical Specialist). On 25 August 2004, he was assigned to Fort Campbell, KY, with duties in his military occupational specialty. The highest grade he achieved was pay grade E-2. 5. The applicant left his unit at Fort Campbell in an AWOL status from 11 May through 23 June 2005 and from 22 through 26 July 2005. He was charged with these offenses on 27 July 2005. 6. On 27 July 2005, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10. He signed a request for discharge for the Good of the Service: a. There is no evidence to indicate that he submitted statements in his own behalf. b. He acknowledged he understood there was 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 a review of his discharge. Additionally, he acknowledged that he realize the act of consideration by either board did not imply that his discharge would be upgraded. 7. On 6 August 2005, the appropriate authority approved the applicant’s request for the good of the service and the issuance of an Under Other than Honorable Conditions Discharge Certificate. 8. On 27 August 2005, he was discharged accordingly. His DD Form 214 shows he completed 1 year, 4 months, and 1 day of total active service. The DD Form 214 lists his lost time from 11 May through 22 June 2005. His authorized awards are listed as the Army Achievement Medal, Global War on Terrorism Service Medal, National Defense Service Medal, and Army Service Ribbon. 9. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. An UOTHC discharge is authorized and normally considered appropriate; however, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 10. Regarding his contention that he was harassed by his staff sergeant during the last 6 months of service and this was the sole reason he went AWOL. He spoke to his platoon sergeant, but he refused to listen and he has witnesses, if needed. He is tired of being embarrassed for something not his fault. The available service record contains no evidence of harassment or capricious actions by his chain of command. 11. Regarding the applicant's request for a personal appearance, AR 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 12. His service record shows he left his unit in an AWOL status twice. Upon return to military control he was discharged after completing 1 year, 4 months, and 1 day of active service. He also had two periods of lost time totaling 46 days. 13. In reaching its determination, the Board can consider the applicant's petition, his claim of harassment, and service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. 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 frequency and nature of his misconduct and the reason for his separation. The Board noted the facts presented above. 2. The Board noted that the applicant had legal counsel, that he acknowledged by his initials that his rights were explained to him by legal counsel and that he understood them, that he voluntarily requested discharge under the provision of Chapter 10, in lieu of trial by court-martial, that he declined to submit a statement in his defense, that he acknowledged his understanding that by requesting discharge, that 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, and that he could receive a discharge under other than honorable conditions. 3. 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. 4. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. ADMINISTRATIVE NOTE(S): NA 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 Army Board for Correction of Military Records (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 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged UOTHC the Soldier was reduced to the lowest enlisted grade. Board action was not required for this reduction. 4. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an UOTHC discharge was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 5. 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) AR20190013031 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013031 5 ABCMR Record of Proceedings (cont) AR20190013031 4