ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 
IN THE CASE OF:  
BOARD DATE: 27 May 2021 DOCKET NUMBER: AR20210006459 
APPLICANT REQUESTS: In effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 17 July 2020 . DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 17 July 2020 
FACTS: 
1. 
The applicant did not file within the three-year time frame provided in Title 10, U.S. 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 effect, he was separated for being absent without leave (AWOL), due to extenuating circumstances involving dysfunctional family violence that impacted his family's safety and military career. He did not return after going AWOL, because he thought he had no hope for recovering his military career. If he had known he could have gone back, he would have done so to make restitution. He was initially provided separation papers at Fort Knox but never actually reviewed them until he applied for Department of Veterans Affairs (VA) benefits around 10 July 2020. He has been treated for post-traumatic stress disorder (PTSD) and other mental health issues, due to traumatic childhood events and unstable family relationships that also impacted his understanding of military culture. 

3. 
The applicant underwent an initial entry examination on 27 March 1999, in preparation for enlistment in the Regular Army.  His exam showed no significant medical or mental history.  The examining physician found him qualified for enlistment at the time.  He enlisted in the Regular Army on 20 May 1999. 

4. 
Court-martial charges were preferred against the applicant on 10 May 2000, for violations of the Uniform Code of Military Justice (UCMJ).  The relevant DD Form 458 

(Charge Sheet) shows he was charged with absenting himself from his unit at Fort Gordon, GA, from on or about 6 December 1999 through on or about 3 May 2000. 

5. 
The applicant consulted with legal counsel on 10 May 2000. 


a. 
He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a bad conduct or dishonorable discharge, and the procedures and rights that were available to him. 

b. 
Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial.  In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

c. 
He was further advised that there is 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 for a review of his discharge.  He realized that the act of consideration by either board does not imply that his discharge would be upgraded. 

d. 
He was advised he could submit any statements he desired in his own behalf. He elected not to submit a statement. 


6. 
The applicant's commander recommended approval of the applicant's request for discharge on 11 June 2001, under the provision of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and recommended that he be issued a UOTHC discharge. 

7. 
The separation authority approved the applicant's request for discharge on 6 July 2001, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 

8. 
The applicant was discharged on 14 August 2001, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  The DD Form 214 he 

was issued confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 

9. 
The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge.  Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 

10. 
The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. 

11. 
MEDICAL REVIEW: 


a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: Documentation is void of a behavioral health diagnosis in-service or post-service. While liberal consideration was applied, documentation is insufficient to determine if a behavioral health condition influenced the applicant’s discharge.  Accordingly, an upgrade is not recommended from a behavioral health standpoint. 
b. The applicant was discharged on 14 August 2001 under Chapter 10, in lieu of trial by court martial, with an Under Other Than Honorable characterization. The basis for separation was an AWOL from 06 December 1999 to 03 May 2000. The applicant requests a characterization upgrade asserting the AWOL related to “dysfunctional family violence that impacted his family’s safety and military career.” The applicant stated he did not return after going AWOL as he “thought he had no hope for recovering his military career.” Additionally, the applicant states the VA is treating him for PTSD relayed to “traumatic childhood events and unstable family relationships that also impacted his understanding of military culture.” 
c. Due to the period of service, active duty electronic medical records are void. 
d. The applicant is not service connected. In July 2020, the applicant reached out for VA housing assistance. VA records are void of any other contact to include the applicant’s asserted treatment for PTSD. 
e. The electronic case file contains an enlistment physical void of psychiatric symptoms, diagnosis, or treatment. 
f. The applicant did not submit medical records. 
BOARD DISCUSSION: 
After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. The Board considered the applicant's statement, his record and length of service, the nature of his misconduct and the reason for his separation. The Board considered the review and conclusions of the medical advising official. The Board found insufficient evidence of in-service mitigating factors for the misconduct and found no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence to include the short term of honorable service completed prior to the lengthy AWOL offense leading to the applicant’s separation, as well as the findings of the medical advisor, the Board that the applicant’s characterization of service was not in error or unjust. 
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. 
X 
CHAIRPERSON 
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. 
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 


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 for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

b. 
A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c. 
Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UOTHC discharge was normally considered appropriate. 


3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018, 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 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. 
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