IN THE CASE OF: BOARD DATE: 3 November 2020 DOCKET NUMBER: AR20200002684 APPLICANT REQUESTS: upgrade of his discharge under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 4 December 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 22 May 2001 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, 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 he was young and irresponsible. He had just gotten engaged and planned to get married. He had his first child and it was a difficult delivery and he needed to be there. Additionally, he planned to leave and return. 3. On 15 September 1997, he enlisted in the Regular Army at 18 years of age. 4. On 5 December 1999, he was reported absent without leave (AWOL) from his unit, A Battery, 1st Battalion, 82nd Field Artillery, Fort Hood, and dropped from the rolls on 4 January 2000. 5. On 29 March 2000, he was apprehended by civil authorities and returned to military control, Fort Lee, VA. 6. Orders 101-6, issued by Headquarters, Fort Knox, shows he was assigned to Personnel Control Facility (PCF), Fort Knox, on 29 March 2000. 7. On 4 April 2000, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) shows he was charged with one specification of being AWOL from 5 December 1999 to 29 March 2000. 8. After consulting with legal counsel on 4 April 2000, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of Army Regulation (AR) 635-200, chapter 10, in lieu of trial by court-martial. In doing so, he acknowledged that the charges preferred against him under the UCMJ, authorized the imposition of a bad conduct discharge or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * by submitting the request, he was acknowledging he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized imposition of a bad conduct or dishonorable discharge * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge * he was advised he could submit any statements he desired in his own behalf, and elected not to do so 9. On 4 April 2001, his intermediate commander recommended approval of his chapter 10 request, with an under other than honorable conditions discharge, and forwarded his request to the approval authority. 10. On 4 June 2001, the approval authority approved his request for discharge, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. He directed the applicant’s reduction to the lowest enlisted grade and his discharge with an under other than honorable conditions character of service. 11. On 22 June 2001, he was discharged. His DD Form 214 shows he was credited with completing 3 years, 5 months, and 13 days of net active service, and he was discharged under the provisions of AR 635-200, chapter 10, in lieu of trial by court- martial. His service was characterized as under other than honorable conditions. Additionally, he had excess leave time from 5 April 2000 through 22 June 2001 (a period of 444 days). 12. There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 13. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. In applying standards of clemency, the Board found limited evidence of creditable service in that the applicant did not complete his enlistment, went AWOL and did not voluntarily return to military control, but was apprehended. Furthermore, the applicant had no wartime service, remorse, valorous awards, or post- service honorable conduct that might have mitigated the discharge characterization that resulted from his misconduct. The Board agreed that the applicant’s discharge characterization as reflected on his DD Form 214 is appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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, United States 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 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 (Active Duty Enlisted Administrative Separations), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3-7 provides: (1) 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. Only the honorable characterization may be awarded a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty training or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. (2) 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. b. Chapter 10 provided, that a member who has committed an offense or offenses for which the authorized punishment included 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, a discharge under other than honorable conditions is 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) AR20200002684 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1