IN THE CASE OF: BOARD DATE: 12 January 2022 DOCKET NUMBER: 20210009426 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Statement, undated * Veterans Affairs Decision letter, dated 3 May 2018 * Applicant Status Letter, dated 6 September 2021 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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, that his characterization of service was changed by the Veterans Affairs but not on his DD Form 214. He would like for his discharge to be upgraded on this documentation as well. 3. The applicant enlisted into the Regular Army on 14 January 1997 and he was awarded military occupational specialty 92Y (Unit Supply Specialist). 4. The applicant’s official military personnel file contains the following documentation: a. A DD Form 458 (Charge Sheet), dated 15 January 1998, which states the following: (1) Charge: Violation of the Uniformed Code of Military Justice, Article 86 (Absent Without Leave (AWOL)). (2) Specification: On or about 9 December 1997, the applicant without authority, absent himself from his organization, Alpha Company, 51st Signal Battalion, 18th Airborne Corps, Fort Bragg, North Carolina and remained absent until on or about 12 January 1998. b. A memorandum from the applicant, Subject: Request for Discharge in Lieu of Trial by Courts-Martial, dated 15 January 1998, which states he voluntarily requested discharge in lieu of trial by courts-martial in accordance with Army Regulation (AR) 635- 200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial). (1) The applicant understood that he had charge(s) preferred against him under the UCMJ, of which authorized the imposition of a bad conduct discharge or dishonorable discharge: Article 86, Absent Without Leave on or about 9 December 1997 to on or about 12 January 1998. (2) The applicant acknowledged he was making the request of his own free will and had not be subjected to any coercion whatsoever by any person and he had been advised of the implications that were attached to his request. He further acknowledged that by submitting the request for discharge, he acknowledged that he was guilty of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge. (3) The applicant understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. He further understood that if he received an under other than honorable conditions discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. (4) The applicant understood that, once his request for discharge is submitted, it may be withdrawn only with consent of the commander exercising court-martial authority, or without that commander’s consent, in the event trial results in an acquittal or the sentence does not include a punitive discharge even though one could have been adjudged by the court. (5) The applicant submitted statements on his own behalf. c. A Department of Defense Optional Form 271 (Conversation Record), dated 14 January 1998 filled out by the applicant states he requested a “general discharge because he had so many deaths in his family. First his grandfather, then his grandmother, then his cousin all in three months (October through December) and that he felt like the world was crashing down on him”. d. On or about 11 June 1998, the immediate commander recommended approval of the applicant's request for discharge in lieu of trial by courts-martial and stated that the applicant’s conduct rendered him triable by courts-martial under circumstances which could lead to a bad conduct or dishonorable discharge. He further states that based on his previous record, punishment can be expected to have a minimal rehabilitative effect. He further recommends that the applicant receive a discharge under other than honorable conditions. e. On or about 26 June 1998, the Commander of United States Army Garrison, Fort Knox, Kentucky, approved the following: (1) The applicant’s request for discharge in lieu of trial by courts-martial. (2) The applicant’s discharge would be under other than honorable conditions. (3) The applicant would be reduced to the grade of E-1. (4) The applicant would be informed of the action expeditiously. 5. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 10, by reason of administrative discharge conduct triable by court martial, on 14 August 1998, and he received an under conditions other than honorable character of service. He completed 1 year, 5 months, and 27 days of net active service. During this period the applicant had time lost from 9 December 1997 through 11 January 1998. 6. The applicant provides a portion of his Veterans Affairs (VA) decision letter, dated 3 May 2018, which states the applicant’s Army service from 14 January 1997 through 14 August 1998 is under honorable conditions and is not a bar to VA benefits. The letter also states that the applicant is entitled to health care benefits under Title 38, United States Code (USC), Chapter 17 for any disability determined to be service connected for active service from 14 January 1997 through 14 August 1998. 7. The VA provides benefits for separated personnel, their dependents and survivors. The VA sets forth the eligibility requirements for these benefits in accordance with Title 38 USC and their rules and regulations. The ABCMR does not have jurisdiction over these requirements. 8. The Board should consider the applicant's statements and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. 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 of service, and nature of his misconduct and the reason for his separation. The applicant provided no post-service achievements and letters of support to weigh a clemency determination. The Board found insufficient evidence of in-service mitigating factors for the misconduct. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 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. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations Enlisted Personnel), dated 26 June 1996, in effect at the time of the applicant’s discharge set policies, standards and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Chapter 10, (Discharge in Lieu of Trial by Court-Martial), applies a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for discharge in lieu of trial by court-martial. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial to which the charges may be referred. The soldier may elect to submit a request for discharge in lieu of trial by court– martial. The soldier will sign a written request, certifying that he or she has been counseled, understands his or her rights, may receive a discharge under other than honorable conditions, and understands the adverse nature of such a discharge and the possible consequences. The soldier’s written request also will include an acknowledgement that the soldier understands the elements of the offense(s) charged and is guilty of the charge(s) or of a lesser included offense(s) therein contained which also authorize(s) the imposition of a punitive discharge. The consulting counsel will sign as a witness, indicating that he or she is a commissioned officer of the Judge Advocate General’s Corps, unless the request is signed by a civilian counsel representing the soldier. b. Chapter 3 of this regulation addressed character of service/description of separation. (1) Paragraph 3-7a. states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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. (2) Paragraph 3-7b. states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 15-185 (ABCMR), paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. 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//