IN THE CASE OF: BOARD DATE: 18 November 2021 DOCKET NUMBER: AR20200009056 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to general, under honorable conditions or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 638 (Recommendation for Award) of the Army Achievement Medal (AAM) * AAM Certificate * DD Form 458 (Charge Sheet) * two DA Forms 2823 (Sworn Statement) * DA Form 3381 (Data Required by the Privacy Act) 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 (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 his application: a. His violation of the Uniform Code of Military Justice (UCMJ) began with severe depression after he returned from his assignment in Korea. In 2003, his spouse left him and depleted their bank account. He did not know her whereabouts. She was his high school sweetheart so he did not want to leave without finding her and finding out why. This information is documented on a DA Form 2823. He ended up reporting to his duty station on 22 July 2003; he did not want to ruin his life. b. His depression continued to get worse. His first sergeant did not take into consideration his undiagnosed condition. Instead, he attempted to penalize him for everything that he could. For example, the first sergeant appointed a noncommissioned officer (NCO) in his barracks to take him to and from physical training (PT). However, that specific NCO would purposely refuse to take him down the hill to PT. The NCO would tell him that he was going to warm up his vehicle, to wait inside, and then take off without him. He was the one reprimanded for this, not the NCO in charge. c. After this, he really began to not care. For instance, his court-martial charges state he falsified sick or medical appointment information. When presented with these exaggerated statements, he simply signed them so he could be left alone. d. In January and February 2004, there was an early morning barracks inspection and it was stated that marijuana remnants were found in his room; however, the military test results proved it was not marijuana. Because "remnants" were found in his room, his vehicle was searched, "remnants" were found and those tested positive for “THC.” However, he had recently gotten back from leave in Michigan where friends and family members had ridden in his vehicle and smoked. He did not think allowing them to smoke in his vehicle would be used against him since he did not smoke. e. Prior to returning to the continental United States (CONUS), he received an AAM where the commander stated his “performance was far beyond normal expectations”; he “proficiently prepared and processed over 100 legal actions," etc. He had “outstanding technical skills while serving as the court recorder,” and his “performance was exceptionally meritorious while serving as a paralegal specialist in the Republic of Korea.” 3. On 13 November 2002, the applicant enlisted in the Regular Army (RA) for 4 years. He held military occupational specialty (MOS) 27D (Paralegal Specialist). He served in Korea from 15 May 2002 to 8 May 2003. Upon his return to CONUS, he was assigned to Fort Riley, KS, with duties in his MOS. 4. On 23 July 2003, the applicant was counseled for being absent without leave (AWOL) from 24 June 2003 to 21 July 2003, for nonjudicial punishment (NJP) under the UCMJ, and for separation under the provisions of Army Regulation (AR) 635-200. 5. The applicant’s record contains and he provided a sworn statement wherein he indicated the reason he was AWOL was his wife left him in early June 2003 and took all of his money with her. He did not know where she was or why she did it and was trying to find her. He became depressed and did not want to report to his unit and then he finally he reported to his unit to face his punishment. 6. On 11 September 2003, he was issued a Memorandum of Reprimand for being AWOL from 24 June 2003 to 21 July 2003. This was an administrative reprimand and was not issued as punishment under the UCMJ. The Memorandum of Reprimand was to be filed in his Official Military Personnel File (OMPF). On the same date, he acknowledged receipt, and elected to submit matters in extenuation, mitigation or rebuttal. a. The applicant submitted a Memorandum of Appeal, dated 12 September 2003, requesting the Memorandum of Reprimand be filed locally, stating: (1) He apologized for his actions, vowed it would not happen again, and stated the incident occurred during a period of great difficult in his life. About a week before he was supposed to report to Fort Riley, his wife left him and took all of his money. Unfortunately, he was not thinking straight, he became depressed. After speaking with his mom, she helped him see the Army was still there for him and he reported to Fort Riley, prepared to face whatever consequences were due, and was hopeful to still be able to serve in some capacity. (2) He was more than willing to accept this Memorandum of Reprimand as very fair punishment for his actions, and he was grateful that he was being allowed to perform his duties as a Paralegal Specialist. This experience had shown him the Army cared about Soldiers and was willing to give them a second chance. He pledged to give his full effort to being the best Soldier he could be. His only concern was the filing of the Memorandum of Reprimand in his OMPF would hurt his ability to be promoted in the future. He understood his actions would be highly scrutinized for a long time following this event ant that any future deficiencies could result in much more severe punishment. The last page of this document is not available for review. b. On 9 October 2003, the appropriate authority, directed that the Memorandum of Reprimand be filed in his OMPF 7. A Developmental Counseling Form, dated 19 November 2003, shows he was counseled for missing PT formation on this date. 8. On 6 January 2004, he was counseled for being missing from work for 2 hours. He lied to his sergeant in charge by stating he had two hospital appointments. TRICARE confirmed he did not have an appointment. 9. A DA Form 2708 (Receipt for Inmate or Detained Person), dated 18 February 2004, shows the applicant was detained for wrongful possession of a controlled substance. This controlled substance was contained on his person. 10. A Military Police Report, dated 18 February 2004, shows an investigation revealed a health and welfare inspection that was conducted in the applicant’s barracks room resulted in the discovery of suspected marijuana residue which field tested negative for THC (the active ingredient in marijuana). A health and welfare inspection was also conducted on the applicant’s vehicle which resulted in the discovery of suspected marijuana residue which field tested positive for THC. He was transported to the military police station where he was advised of his legal rights, which he waived. He was further processed and released to his unit first sergeant. a. This was a final report. A DA Form 4833 was completed. A Commanders Report of Disciplinary or Administrative Action was required. b. This report shows a previous offense: Traffic accident (vehicle to object) (with injuries) failure to maintain a single lane of travel. Driving at a speed greater than prudent, the date of offense was 25 January 2004. 11. A DA Form 4833 (Commanders Report of Disciplinary or Administrative Action) shows on 18 February 2004, the applicant was in the possession of a controlled substance (marijuana). 12. The applicant's OMPF contains a copy and the applicant provided a copy of a Sworn Statement, dated 18 February 2004, wherein the he stated while at home during the Christmas holiday several family members and friends were in his car with marijuana. They rolled it, but never smoked in the car. The day after Christmas, he loaned his car to a friend and he smelled marijuana when the car was returned. He believed any residue was left at that time. 13. A Charge Sheet, dated 23 March 2004, shows the applicant was charged with: * Being AWOL from 23 June to 23 July 2003 * Failing to go to his appointed place of duty (PT formation) on 19 November 2003 * Making a false official statement to an officer on 5 December 2003 by stating he was going on sick call for a follow-up appointment * Making a false official statement to a sergeant on 6 January 2004 by stating he had two hospital appointments * Failing to go to his appointed place of duty (PT formation) on 30 January 2004 * Wrongfully using marijuana between 3 January and 3 February 2004 * Wrongfully possessing marijuana on 18 February 2004 14. On 7 April 2004, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200 (Personnel Separations – Enlisted Personnel). 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 provision of AR 635-200, chapter 10. He signed a request for discharge in lieu of trial by court-martial and declined to submit statements in his own behalf. 15. His immediate and intermediate commanders recommended approval of his request for discharge in lieu of trial by court-martial with an Under Other than Honorable Conditions Discharge Certificate. 16. On 21 April 2004, The Commander, Headquarters, 24th Infantry Division (Mechanized), Fort Riley, KS, directed the applicant’s reduction to private/E-1, approved his request for discharge in lieu of trial by court-martial, and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate. 17. On 28 April 2004, he was discharged accordingly. His DD Form 214 shows he completed 2 years, 4 months, and 18 days of total active service. 18. The applicant was awarded the AAM, which is not listed on his DD Form 214. 19. AR 635-200, chapter 10, provides for 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. A UOTHC 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. 20. In reaching its determination, the Board can consider the applicant's petition, his claims, and service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. 21. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Psychologist reviewed this case. Documentation reviewed included the application and supporting documents, his service records, and the Department of Veterans Affairs electronic medical record (Joint Legacy Viewer (JLV)). Due to the period of service, no active duty electronic medical records were available for review and no hard copy medical documentation from the time of service was submitted for review. a. The applicant is not service connected and there are no electronic medical records in JLV available for review. b. After review of all available information, it is the opinion of the ARBA Psychologist that there is insufficient evidence to support that the applicant had a behavioral health condition at the time of service. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's behavioral health claim and the review and conclusions of the ARBA Psychologist. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding there being insufficient evidence to support that the applicant had a behavioral health condition at the time of his service. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the corrections described in Administrative Note(s) below. 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: Other than the correction addressed in Administrative Note(s) below, the Board determined 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 otherwise 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): AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. As a result, amend his DD Form 214 by adding the Army Achievement Medal. 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. AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an UOTHC discharge was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC discharge is authorized by regulation, 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. 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) AR20200009056 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1