IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20190013754 APPLICANT REQUESTS: An upgrade of his uncharacterized service to honorable or to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement written to the Board 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 when he enlisted into the military he was a homeless high school student without either of his parents. Due to a less than favorable upbringing he was not mentally prepared to become a Soldier. Since the ordeal with the Army, he has been an upstanding citizen and has been employed with the United States Postal Service for 21 years. Within the last six years, he has been pursuing a bachelor's degree in computer networking and cybersecurity in which he was scheduled to graduate in May of 2020. a. He believes the blemish on his military record will hinder him from obtaining the security clearances he will need to seek employment after graduating. He is seeking a more favorable discharge that will not create a roadblock in the near future for something he did more than 30 years ago. b. He believes his uncharacterized service should be upgrade to honorable service or to something more favorable. If the Board disagrees with this request, please explain in detail why. The presumption of regularity that might normally permit one to assume that the military acted correctly in characterizing his service as less than honorable does not apply to this case because of the following evidence/supporting documentation being submitted. However, he submitted no evidence in excess of the personal statement written to the Board, which indicates: (1) Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge (in effect, uncharacterized service). (2) He has been a good citizen since discharge. (3) His record lists only minor or isolated offenses; this includes his unauthorized absence. (4) His ability to serve was impaired by his personal problems, youth and immaturity, and by his deprived childhood/background. (5) There was a waiver of moral standards when he enlisted; those preservice problems impaired his ability to serve. (6) He asks that this blemish be erased from his record, if possible. (7) Please feel free to contact him with questions or concerns. 3. On 5 March 1991, the applicant enlisted in the Regular Army for a period of 3 years. He was assigned to Fort Benning, GA, for one station unit training in military occupational specialty (MOS) 11B (Infantryman). It appears he completed the training requirements, was awarded MOS 11B, and he left Fort Benning in a casual leave status enroute to Fort Ord, CA, on 1 November 1991. 4. His DA Form 2-1 (Personnel Qualification Record) shows on 9 December 1991, he was reported in an absent without leave (AWOL) status and on 8 January 1992, he was dropped from Army rolls and was carried in a desertion status. A DA Form 4187 (Personnel Action) shows he surrendered to military authorities at Fort Eustis, VA, on 19 April 1993. On the same date, he was attached to the Special Processing Company, Fort Knox, KY. 5. A Charge Sheet, dated 11 May 1993, shows he was charged with being AWOL from 9 December 1991 to 19 April 1993. 6. On 11 May 1993, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for Good of the Service). 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 provisions of chapter 10, AR 635-200. He signed a request for discharge for the good of the service and indicated he would not submit statements in his own behalf. 7. On 7 June 1993, the applicant’s immediate and intermediate commanders recommended approval of his request with an entry level separation. 8. On 23 June 1993, the appropriate authority approved the applicant’s request for discharge for the good of the service with an entry level separation. 9. On 29 July 1993, he was discharged under chapter 10, AR 635-200 with uncharacterized service. His DD Form 214 shows he completed 7 months and 14 days of net active service with lost time from 9 December 1991 through 18 April 1993 [496 days]. He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge Rifle (M-16), and Expert Marksmanship Qualification Badge Hand Grenade. 10. On 28 October 1998, the Army Discharge Review Board denied his petition to upgrade his discharge. 11. 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 under other than honorable conditions 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. 12. In reaching its determination, the Board can consider the applicant's petition, his service record, and his contentions in light of the published Department of Defense 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 insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. The Board noted that, in effect, the applicant was given clemency by his chain of command in that his service was uncharacterized when it could have been characterized as under other than honorable conditions because of the severity of his misconduct. 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 : : : 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 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 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. d. Chapter 11 states for Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action) and who could not meet the minimum standards for completion of training, an uncharacterized description of service was required for separation under this chapter. 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) AR20190013754 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013754 6 ABCMR Record of Proceedings (cont) AR20190013754 5