ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 September 2020 DOCKET NUMBER: AR20190015312 APPLICANT REQUESTS: an upgrade of his dishonorable discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States * DD Form 214 (Certificate of Release or Discharge from Active Duty) REFERENCES: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-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), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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 stated 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. Paragraph 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. Title 10, U.S. Code, section 1552(f), provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice (UCMJ), action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 4. 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. 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 based on 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. 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. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. 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 his military records show he suffered hearing loss and received hearing aids while he was in the military. Due to his dishonorable discharge, he is not medically covered for hearing aids by the Department of Veterans Affairs. 3. The DA Form 4187 (Personnel Action), dated 3 December 2003, shows his duty status changed from present for duty to absent without leave effective 1 December 2003. 4. The DD Form 553 (Deserter/Absentee Wanted by the Armed Forces,), dated 30 December 2003, shows his company commander reported him as a deserter. 5. The DD Form 458 (Charge Sheet), dated 30 December 2003, shows court-martial charges were preferred against him for being absent without authority on or about 1 December 2003 and remaining so absent in desertion. 6. The DA Form 4187, dated 5 January 2004, shows his duty status changed from absent without leave to dropped from the rolls effective 1 January 2004. 7. The DD Form 616 (Report of Return of Absentee), dated 10 July 2004, shows he was apprehended by civil authorities and returned to military control effective 10 July 2004. 8. Headquarters, 24th Infantry Division (Mechanized) and Fort Riley, General Court- Martial Order Number 12, dated 23 March 2006, shows he was arraigned at Fort Riley on the following charges and specifications: a. Charge I: violation of Article 85, UCMJ, for quitting his unit with intent to shirk important service on or about 4 September 2003 without authority and remaining so absent in desertion until on or about 9 November 2003. He pled guilty and was found guilty; b. Charge II: violation of Article 86, UCMJ, for being absent from his unit on or about 29 November 2003 without authority and remaining so absent until on or about 19 June 2005. He pled guilty and was found guilty; and c. Charge III: violation of Article 87, UCMJ, for missing unit movement through design on or about 6 September 2003. He pled guilty and was found guilty. d. On 21 November 2005, he was sentenced to reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for 18 months, and to be dishonorably discharged from the service. 9. Headquarters, 24th Infantry Division (Mechanized) and Fort Riley, General Court- Martial Order Number 15, dated 5 April 2006, shows he was arraigned at Fort Riley on the following charges and specifications: a. Charge I: violation of Article 85, UCMJ, for quitting his unit with intent to shirk important service on or about 4 September 2003 without authority and remaining so absent in desertion until on or about 9 November 2003. He pled guilty and was found guilty; b. Charge II: violation of Article 86, UCMJ, for being absent from his unit on or about 29 November 2003 without authority and remaining so absent until on or about 19 June 2005. He pled guilty and was found guilty; and c. Charge III: violation of Article 87, UCMJ, for missing unit movement through design on or about 6 September 2003. He pled guilty and was found guilty. d. On 21 November 2005, he was sentenced to reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for 18 months, and to be dishonorably discharged from the service. The convening authority adjudged and approved the sentence except for the part extending to a dishonorable discharge, and ordered it so executed. e. Headquarters, 24th Infantry Division (Mechanized) and Fort Riley, General Court- Martial Order Number 12, dated 23 March 2006, was rescinded effective 5 April 2006. 10. Headquarters, U.S. Army Field Artillery and Fort Sill, General Court-Martial Order Number 21, dated 26 January 2007, stated the applicant's sentence to reduction to the grade of private/E-1, forfeiture of all pay and allowances, confinement for 18 months, and a dishonorable discharge adjudged on 21 November 2005, as promulgated in General Court-Martial Order Number 15, Headquarters, 24th Infantry Division (Mechanized) and Fort Riley, dated 5 April 2006, was finally affirmed. Article 71(c) having been complied with, the dishonorable discharge was ordered executed. 11. His DD Form 214 shows he was discharged by reason of court-martial on 27 July 2007 under the provisions of Army Regulation 635-200, chapter 3. He completed 2 years, 10 months, and 23 days of net active service during this period with lost time from 4 September 2003 to 11 November 2003, absence without leave from 1 December 2003 through 21 June 2005, and confinement from 21 November 2005 to 1 February 2007. His service was characterized as dishonorable. He was awarded or authorized the Army Service Ribbon. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190015312 5 1