ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 September 2021 DOCKET NUMBER: AR20210008310 APPLICANT REQUESTS: The applicant requests upgrade of his under other than honorable conditions discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Military Police School Diploma * Army National Guard (ARNG) Combat Champions Certificate * Honorable Discharge Certificate * Signal Support Systems Specialist School Certificate * Certificate of Signal Corps (Regimental) Affiliations * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Marriage License FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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 is requesting his discharge be changed from under other than honorable conditions to under honorable conditions (general). He was discharged for being absent without leave (AWOL). At the time he went AWOL, he was being harassed for being gay. He was so in fear for his life, he fled with his boyfriend. That was why he went AWOL and he is asking for an upgrade for those reasons. It took him a while to figure out what he needed to do to request the discharge change. 3. The applicant provides the following documents, not contained in his service record, for the Board's consideration: * a diploma from the Military Police School, dated 8 March 1996 * a certificate for the Florida ARNG Combat Championships * an Honorable Discharge Certificate from the ARNG, dated 25 September 1997 * a diploma from the United States Army Signal Center and Fort Gordon, dated 20 February 1998 * a certificate of Signal Corps (Regimental) Affiliation, dated 20 February 1998 * his marriage certificate to his husband, dated 4. On 8 September 1995, the applicant enlisted in the ARNG, at the age of 18 years old, for a period of 8 years. On 8 March 1996, he received a DD Form 214, which shows he entered active duty on 26 October 1995. He had 4 months and 13 days of net active duty service this period with 1 month and 18 days of prior inactive service. He received the military occupational specialty (MOS) of 95B (Military Police). He received an honorable discharge for completion of his active duty training and was returned to his ARNG unit. 5. On 25 September 1997, the applicant was honorably discharged from the ARNG and as a reserve of the Army. 6. On 26 September 1997, the applicant enlisted in the Regular Army for a period of 4 years. 7. On 10 November 1998, the applicant's duty status was changed from present for duty (PDY) to AWOL. On 10 December 1998, his status was changed from AWOL to dropped from rolls (DFR). On 5 May 1999, the applicant was apprehended by civilian authorities and returned to military control to the Personnel Control Facility (PCF) at Fort Knox, Kentucky on 5 May 1999. 8. On 17 May 1999, his duty status was changed from PDY to AWOL and to DFR. He was to proceed to his parent unit in Fort Hood, Texas and failed to comply. On 12 August 2001, he was apprehended by civilian authorities and returned to the PCF at Fort Knox, Kentucky on 12 August 2001. 9. On 15 August 2001, his duty status was changed from PDY to AWOL and to DFR. He failed to proceed to the Special Processing Company, PCF, Fort Knox, Kentucky. On 30 July 2003, he was apprehended by civilian authorities and returned to military control to the PCF at Fort Knox, Kentucky on 30 July 2003. 10. On 3 August 2003, his duty status was changed from PDY to AWOL and to DFR. He failed to proceed to Special Processing Company, PCF Fort Knox, Kentucky. On 21 January 2004, he was apprehended by civilian authorities and returned to military control to the PCF at Fort Knox, Kentucky on 21 January 2004. 11. On 9 January 2004, a Characterization of Service Checklist for Administrative Discharge Actions was completed, and shows: * he was promoted to Private First Class (PFC) on 26 September 1997 * he had been AWOL from 10 November 199 to 4 May 1999, 17 May 1999 to 11 August 2001, 15 August 2001 to 29 July 2003, and 3 August 2003 to 20 January 2004 * he had no derogatory data * he had no citations or awards 12. On 5 February 2004, the commander of Special Processing Company, PCF, Fort Knox, Kentucky preferred court-martial charges against the applicant for being AWOL: * from on or about 1 November 1998 to on or about 5 May 1999 * from on or about 17 May 1999 to on or about 12 August 2001 * from on or about 15 August 2001 to on or about 30 July 2003 * from on or about 3 August 2003 to on or about 21 January 2004 13. On 5 February 2004, the applicant requested a discharge in lieu of trial by court- martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial and his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits. He elected not to submit a statement on his own behalf. 14. On 9 February 2004, the appropriate approval authority approved the applicant's request and directed an under other than honorable conditions discharge and directed he be reduced to the grade of Private/E1. 15. On 18 February 2004, the applicant was discharged accordingly. His DD Form 214 shows he had completed 1 year, 2 months, and 4 days of net active duty service this period with 4 months and 13 days of prior active duty service and 1 year, 5 months, and 5 days of prior inactive service. He had lost time from 10 November 1998 to 4 May 1999, 17 May 1999 to 11 August 2001, 15 August 2001 to 29 July 2003, and 3 August 2003 to 20 January 2004. He was awarded or authorized the National Defense Service Medal and Army Service Ribbon. 16. During the applicant's era of service, Soldiers charged with UCMJ violations that carried a punitive discharge among its maximum punishments could request separation under chapter 10, Army Regulation 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. AWOL for more than 30 days has as part of its maximum punishment a punitive discharge. 17. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 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, his record of service, the 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 :X :X :X 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. 11/3/2021 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. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable character of service represented 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 had generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. 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. c. Chapter 10 permitted a Soldier to request discharge in lieu of trial by court-martial when they had committed an offense or offenses which, under the UCMJ, included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an under other than honorable conditions discharge was normally furnished, but the discharge authority could direct a general discharge, if warranted. 3. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. In chapter 7, it stated Soldiers approved for an under other than honorable conditions discharge were to be reduced to the lowest enlisted grade. 4. The Manual for Courts-Martial, Appendix 12 (Maximum Punishment Chart) showed a punitive discharge was an available maximum punishment for AWOL over 30 days. 5. 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. 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. 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//