IN THE CASE OF: BOARD DATE: 2 February 2021 DOCKET NUMBER: AR20200010213 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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) * Department of Veterans Affairs (VA) Letter 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 his initial training was at Aberdeen Proving Grounds, MD. He received the expert marksmanship qualification Badge, and he was determined to be the most physically fit trainee upon graduation. He also completed the Eagle “K” Run/March. Then he was transferred to U.S. the Army Garrison, Schweinfurt, Germany where he rebuilt turbine engines and worked as a mechanic recovery specialist. He trained to upright tanks and other equipment. He served honorably and worked hard to be his best for 2 years and 11 months on a 3-year enlistment contract. He did not realize the consequences of being absent [without leave (AWOL)] for 2 weeks, at the time he was young at age 21. He left home at age 19 because his father was abusive. 3. Additionally, he states he has been employed at the same company in New Jersey for over 15 years. Two years ago he married his wife and they have one son. They are surrounded by family and attend church. He wants his discharge upgraded so that he may be able to attain a VA loan and take advantage of other benefits. 4. On 4 February 1999, the applicant enlisted in the Regular Army (RA) for 3 years. He held military occupational specialty (MOS) 63H (Track Vehicle Repairer). The highest rank he achieved was private first class/E-3. 5. He left his unit at Company B, 299th Forward Support Battalion, 2d Brigade, 1st Infantry Division [Schweinfurt, Germany] in an AWOL status on 12 February 2001. He was dropped from Army rolls on 13 March 2001, and he surrendered to military control on 8 April 2001, and he was assigned to the Personnel Control Facility Fort Knox, KY. 6. On 24 April 2001, he voluntarily declared that he was AWOL during the above period. A Charge Sheet, dated 24 April 2001, also shows he was charged with the above offense. 7. On 24 April 2001, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (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: a. He declined to submit statements in his own behalf. b. He acknowledged he understood there was no automatic upgrading nor review by any government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished a review of his discharge. Additionally, he acknowledged that he realized the act of consideration by either board did not imply that his discharge would be upgraded. 8. On 7 February 2002, the United States Army Personnel Control Facility, U.S. Army Armor Center, Fort Knox, recommended approval of his request for discharge in lieu of trial by court-martial with an Under Other than Honorable Conditions Discharge Certificate. 9. The Garrison Commander, U.S. Army Garrison U.S. Army Armor Center, Fort Knox, KY, 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. 10. On 22 February 2002, he was discharged accordingly. His DD Form 214 shows he completed 2 years, 10 months, and 24 days of total active service. His authorized award is listed as the Army Service Ribbon. The DD Form 214 also shows in: * Character of Service, “Under Other than Honorable Conditions” * Separation Authority, AR 635-200, Chapter 10 * Narrative Reason for Separation, “In Lieu of Trial by Court-Martial” 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 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. 12. The applicant provides a VA Letter (1 page), dated 29 May 2020, showing he filed a VA claim and the VA requested that he provide additional information. 13. He argues that he served honorably and he did not realize the consequences of being AWOL at age 21. He left home at age 19 because his father was abusive. 14. He left his unit in Germany in an AWOL status from 12 February through 8 April 2001. Upon return to military control he was discharged after completing 2 years, and 10 months, and 24 days of his 3-year enlistment. He also had 54 days of lost time. 15. The ABCMR does not grant requests for the correction of records solely for making the applicant eligible for veterans or other benefits. The Board decides every case individually based upon its merits when an applicant requests a correction to the military record. 16. 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. 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, his surrender to military authorities, a request for discharge and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. The Board considered the applicant’s statement regarding post-service conduct and achievements. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation should be corrected as a matter of clemency. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX :XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214 for the period of service ending 22 February 2002 to show in item 24 (Character of Service) – “Under Honorable Conditions (General).” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to an upgrade to an Honorable Character of Service. 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 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) AR20200010213 5 ABCMR Record of Proceedings (cont) AR20200010213 1