IN THE CASE OF: BOARD DATE: 3 September 2020 DOCKET NUMBER: AR20190013649 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) 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 27 September 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 30 March 2010 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, he was 21 years old when he joined the military. He had never been out of, much less the state of. He went to Fort Sill, OK, for 13B (Cannon Crewmember) One Station Unit Training (OSUT). He was then sent to Fort Campbell, KY. He attended Air Assault Training, where he got into trouble with a cadre noncommissioned officer (NCO) named Sergeant (SGT) B_. The NCO got in his face and asked him where he was from. When he told him, the NCO started bad mouthing him, taking his shirt off, and head butted him with a Kevlar. The applicant started to take off his blouse to defend himself and then he went absent without leave (AWOL) for 30 days. He was sent to Fort Knox, where he was discharged. He has been living with his decision for 18 years and would like to get Department of Veterans Affairs (VA) medical benefits. 3. The applicant enlisted in the Regular Army on 3 February 1999. 4. The applicant’s service record contains the following documents: * DA Form 4187 (Personnel Action), showing his duty status was changed from present for duty (PDY) to AWOL, effective 4 January 2000 * DA Form 4187, showing his duty status was changed from AWOL to PDY, effective 1 February 2000 * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), showing he was considered for nonjudicial punishment (NJP) on 8 February 2000, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 4 January 2000 through on or about 1 February 2000 * DA Form 4187, showing his duty status was changed from PDY to AWOL, effective 28 February 2000 * DA Form 4187, showing his duty status was changed from AWOL to dropped from rolls, effective 29 February 2000 5. Court-martial charges were preferred against the applicant on 29 February 2000, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit at Fort Campbell, KY, from on or about 28 February 2000 until a date to be determined, as he was charged in an absentee status. 6. The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II), shows he was returned to military control on or about 8 June 2000, and was sent to the Fort Knox Personnel Control Facility on 9 June 2000. 7. The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his DD Form 214 shows he was discharged on 15 November 2001, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. He was credited with two years, five months, and three days of net active service, and his service was characterized as UOTHC. 8. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 9. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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, 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 Uniform Code of Military Justice, 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 Veterans Administration 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 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) AR20190013649 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013649 5 ABCMR Record of Proceedings (cont) AR20190013649 4