ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 14 February 2020 DOCKET NUMBER: AR20190013230 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions discharge in-lieu of trial by court-martial (Chapter 10). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * 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. The applicant states: a. Due to exiting the military he has been having health issues, so he needs to get his DD Form 214 adjudicated. He needs to be seen by mental health and a hearing specialist. He is aware that it has been over 20 years since he has been discharged. During the time that he was absent without leave (AWOL) he had a mental breakdown on some personal family issues which caused him to be AWOL. He did not know at the time who to talk to, so he left on his own to figure it out on his own and take care of the matter. b. He realized at the time and when he reached his homeland of Samoa his actions were wrong. He is regretful on how he handled it at that time. He did not want to leave the military because he wanted it to be his career, but like he said the issues he had at that time were overwhelming. He felt like he had no one to turn to. He had no family at Fort Hood, TX and he felt like he was all alone. He now humbly asks and requests his discharge be changed. c. He was told by personnel at Fort Sill, OK, upon his release from the military that, after 2 years he could request this change. He has asked the recruiting office in Samoa and they were not much help so he gave up. 3. On 4 February 1997, the applicant was 18 years old and enlisted in the Regular Army for a period of 3 years. 4. His record contains a personnel action form that shows he was AWOL from on or about 20 September to 4 November 1997. 5. In November 1997 a medical examination for separation shows the applicant did not desire a separation medical examination. 6. On 13 November 1997, court-martial charges were preferred against the applicant for being AWOL from on or about 20 September to 4 November 1997. a. The applicant voluntarily requested to be discharged in-lieu of trial by court- martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). b. He consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, its effects, and of the procedures and rights available to him. He elected not to submit statements in his own behalf. c. His unit commander recommended approval of his request to be discharged and the issuance of an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate. d. The Chief, Criminal Law Division had no legal objection to further processing in accordance with the unit commander’s recommendations. e. The separation authority approved the applicant’s request for discharge in lieu of trial by court-martial and directed he be furnished an UOTHC Discharge Certificate. 7. On 16 March 1998, the applicant was discharged accordingly. His DD Form 214 shows he was given an UOTHC character of service. He had 11 months and 28 days of net active service with lost time during this period from 20 September to 3 November 1997. He was not awarded a personal decoration. 8. Army Regulation 635-200, chapter 10 stated that, 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 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, a discharge under other than honorable conditions was normally issued to an individual who was discharged in lieu of trial by court-martial. 9. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the short term of honorable service completed prior to a lengthy AWOL offense, as well as insufficient evidence of mitigating reasons for the AWOL, post-service achievements or letters of reference submitted by the applicant to support a clemency determination. Based on a preponderance of evidence, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the characterization of service. 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. 10/16/2020 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. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 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, a discharge under other than honorable conditions was normally issued to an individual who was discharged in lieu of trial by court-martial. 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 under other than honorable conditions discharge 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. 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//