IN THE CASE OF: BOARD DATE: 11 June 2020 DOCKET NUMBER: AR20190015390 APPLICANT REQUESTS: The applicant requests an upgrade of his Chapter 10 under other than honorable conditions discharge to general, under honorable conditions. 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. The applicant states: a. He would like to see if he could obtain a copy of his military records to see if his discharge has grounds for an upgrade to general. Any records the Board can send or review on his behalf please do so. Many years have passed and his records have been lost, but this discharge prevents him from obtaining Government jobs. He did nothing wrong and tried every step he could at the time. b. His discharge was unjust because he came home to be with his wife at the time because of problems during her pregnancy. He took what available leave time he had and even tried to be attached to units at Fort Hood, TX, but Captain (CPT) C refused to sign off on the attachment for personal reasons. He had treated the applicant unfair from the day he was sworn in as the Captain [commander] of his unit. Captain C used his position to harass him every chance he got. The applicant was given non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice. His pay was also docked. His first Article 15 came from the day CPT C was sworn in as Captain. The applicant had his wisdom teeth removed. The applicant stood in the window and watched but CPT C said the applicant was absent without leave (AWOL) from duty. The applicant had a doctor’s note clearing him from duty but CPT C did not care. He [the applicant] reenlisted for an extra 3 years, so why would he go AWOL? The applicant just wanted to be there for his wife during that rough patch. 3. On 21 August 1992, the applicant enlisted in the Regular Army for a period of 3 years. On 23 June 1993, he extended his 3 year enlistment for a period of 12 months. 4. His record contained documents showing he was AWOL and dropped from the Army’s rolls from on or about 4 October 1993 to 27 May 1995. 5. On 22 March 1995, court-martial charges were preferred against the applicant for being AWOL from on or about 4 October 1993 to the present day (22 March 1995). 6. On 28 May 1995, his duty status was changed from dropped from unit rolls to attached/returned to military control. 7. On 2 June 1995, he understood that he was not required to undergo a medical examination for separation from active duty. He indicated that he did not desire a separation medical examination. 8. On 8 June 1995, court-martial charges were preferred against the applicant for being AWOL from on or about 4 October 1993 to 28 May 1995. a. The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable discharge, and the procedures and rights that were available to him. b. Subsequent to receiving this legal counsel and without coercion, he voluntarily requested to be discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, in lieu of trial by court- martial. The applicant elected not to submit a statement in his own behalf. c. In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge. The applicant further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also indicated he understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge. d. On 21 August 1995, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation (AR) 635-200, Chapter 10, in lieu of trial by court-martial, and directed he be furnished an under other than honorable conditions (UOTHC) discharge. He also directed the applicant to be reduced to the rank/pay grade of private/E-1. 7. On 8 September 1995, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial with an UOTHC discharge. He completed 1 year, 4 months, and 17 days of net active service. His DD Form 214 also shows he had lost time from 4 October 1993 to 27 May 1995. The applicant was awarded or authorized the: * National Defense Service Medal * Air Reserve Forces Meritorious Service Medal * Expert Marksmanship Qualification Badge with Rifle Bar 8. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an under other than honorable conditions discharge was normally considered appropriate at the time. a. 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 b. 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. 10. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the frequency and nature of his misconduct and the reason for his separation. The Board found insufficient evidence of in-service mitigation for his lengthy absence 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. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :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. ADMINISTRATIVE NOTE(S): Not Applicable 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 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time. a. 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 b. 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. 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. 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) AR20190015390 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190015390 6 ABCMR Record of Proceedings (cont) AR20190015390 5