IN THE CASE OF: BOARD DATE: 23 November 2021 DOCKET NUMBER: AR20210007097 APPLICANT REQUESTS: In effect, his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable 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 15 July 2020 * National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service), for the periods ending 9 February 2004 and 30 May 2007 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 called back to active duty from the Individual Ready Reserve (IRR), and was told that General T_ and Senator L_ had signed off on his return. He was further told his DD Form 214 (Certificate of Release or Discharge from Active Duty) would be upgraded to honorable. His further asserts his paperwork is all messed up. 3. The applicant enlisted in the Mississippi Army National Guard (MSARNG) on 29 November 2001. He entered initial active duty for training (IADT) on 4 March 2002, for the purpose of completing his initial entry training. His record indicates he did not complete initial entry training and was not awarded a military occupational specialty (MOS). 4. The applicant was released from active duty (REFRAD) on 5 June 2002, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Paragraph 5-11, for a failure to meet procurement medical fitness standards. His DD Form 214 further shows he was REFRAD, discharged from the Reserve of the Army, and returned to the control of the ARNG for further discharge processing. His service was uncharacterized. 5. The applicant's NGB Form 22, for the period ending 5 June 2002, shows he was discharged from the ARNG the same day. 6. The applicant reenlisted in the MSARNG on 9 October 2003. He entered IADT on 27 October 2003, for the purpose of completing his initial entry training. 7. The applicant's service record contains the following documentation: a. DA Forms 4856 (Developmental Counseling Form), which show he was counseled on at least five occasions between 14 November 2003 and 25 November 2003, for reasons including but not limited to: a lack of motivation; refusing to train; disobeying lawful orders; and his transfer to the Warrior Sprit Unit due to his inability to follow the Army Values. b. Three DA Forms 4187 (Personnel Actions), which show he was attached to the Warrior Spirit Unit effective 26 November 2003; he was reported absent without leave (AWOL) on 10 January 2004; and he was dropped from the unit rolls on 10 February 2004. c. NGB Form 22, for the period ending 9 February 2004, which shows he was separated with an uncharacterized discharge, under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-5A, "Dropped from the Rolls." d. DD Form 458 (Charge Sheet), which shows court-martial charges were preferred against him on 20 February 2004, for violations of the Uniform Code of Military Justice (UCMJ). The Charge Sheet shows he was charged with being AWOL, with the intent to remain away permanently, from on or about 10 January 2004 through a date to be determined [applicant was charged in absentia]. 8. The applicant was returned to military control on or about 26 March 2004. 9. The applicant consulted with legal counsel on 12 April 2004, and signed an admission of guilt to going AWOL from on or about 10 January 2004 through on or about 26 March 2004. 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 UOTHC discharge; and the procedures and rights that were available to him. a. 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. b. 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. c. He was advised he could submit any statements he desired on his own behalf. He declined to submit a statement. 10. The applicant’s commander recommended approval of his request for discharge on 13 April 2004, 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. 11. The separation authority approved the applicant's request for discharge on 14 April 2004, 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. 12. The applicant was discharged on 21 April 2004, 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. 13. 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. 14. The applicant petitioned the Army Discharge Review Board (ADRB) for a discharge upgrade. After careful review and consideration on 27 July 2005, the ADRB found his discharge was both proper and equitable and denied his petition for relief. 15. It is unclear when the applicant enlisted in the U.S. Army Reserve (USAR); however, he requested and received a conditional release from the USAR (81st Regional Readiness Command) on 5 April 2006, for the purpose of enlisting in the MSARNG. He reenlisted in the MSARNG on 1 July 2006 and was separated on 30 May 2007. His NGB Form 22 for this period shows he was honorably discharged under the provisions of NGR 600-200, paragraph 8-36U. He was credited with completing 11 months of net service this period. 16. The Board should consider the applicant's request and statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement (circumstances), record of service, frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors 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 the character of service the applicant received upon separation was not in error or unjust. 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, 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 (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007097 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210007097 6 ABCMR Record of Proceedings (cont) AR20210007097 5