ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 December 2021 DOCKET NUMBER: AR20210011026 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) FACTS: 1. The applicant did not file within the 3-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 he was 19 years old when he joined the military. Prior to his first reenlistment he was honorably discharged. After he returned from deployment to Iraq he had a hard time readjusting and spent 40 days in confinement. He believes any Soldier who served for their country deserves honor. 3. On 20 July 1999, at the age of 19 years, 4 months and 18 days, he enlisted in the Regular Army for 3 years in the rank of private/E-1. His record shows: a. It is unknown when he was promoted to the rank of private two/E-2 and private first class/E-3, and specialist/E-4. On 1 October 2001, he reenlisted for 2 years in the rank of specialist. b. On 4 October 2002, he received the Army Good Conduct Medal for exemplary behavior, efficiency, and fidelity. c. The applicant’s duty status was changed on: * 18 December 2002, from present for duty (PDY) to absent without leave (AWOL) * 23 December 2002, from AWOL to PDY * 9 January 2003, from PDY to AWOL * 8 February 2003, from AWOL to dropped from the rolls (DFR) d. A DD Form 458 (Charge Sheet), dated 9 February 2003, shows his commander preferred court-martial charges against him for being AWOL on or about 9 January 2003 and remained absent in desertion. e. On 3 March 2003, the applicant’s duty status changed from DFR to PDY. f. On 26 March 2003, he accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL on or about 9 January - 3 March 2003, 18-23 December 2002, and on or about 22 October 2002, he disobeyed a lawful order given by a noncommissioned officer in that he was to call the COS [sic] to inform them that he was on his way to work. He received reduction from the rank of specialist/E-4 to private first class/E-3, forfeiture of $356.00, and 14 days of restriction and extra duty. g. Sometime between 26 March and 3 October 2003, the applicant was promoted back to the rank of specialist/E-4. h. On 7 October 2003, he was counseled for failing to report to his place of duty on 3 October 2003. i. On 11 October 2003, the applicant’s duty status changed from PDY to AWOL. j. On 13 and 14 October 2003, page one of two counseling forms was prepared for the applicant failing to report to his place of duty on 11 and 12 October 2003, it is unknown if he received the counselings. k. On 21 October 2003, the applicant’s duty status changed from AWOL to PDY and he was counseled for being AWOL on or about 12-21 October 2003. l. On 31 October 2003, he accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty on or about 18 September, 1 and 3 October 2003, and being AWOL on or about 11-21 October 2003. He received reduction from the rank of specialist/E-4 to private first class/E-3, forfeiture of $375.00, and 45 days of restriction and extra duty. m. On 1 November 2003, the applicant’s duty status changed from PDY to AWOL, on 1 December 2003 from AWOL to DFR, and on 2 December 2003 he was declared a deserter. n. A DD Form 458, dated 18 December 2003, shows his commander preferred court-martial charges against him for being AWOL on or about 1 December 2003 and remained absent in desertion. o. On 29 November 2004, the applicant’s duty status changed from AWOL to PDY, and on 1 December 2004 from PDY to confined by military authority. p. On 1 December 2004, he was placed in pre-trial confinement and was advised of the rights available to him. On 2 December 2004, the military magistrate stated there was sufficient probable cause for pre-trial confinement. q. A DD Form 458, dated 6 December 2004, shows his commander preferred court-martial charges against him for being AWOL on or about 1-29 November 2004. The applicant waived his right to provide additional evidence on his own behalf for pretrial confinement. r. On 7 and 9 December 2004, his company, intermediate, and senior commanders, and the Staff Judge Advocate recommended the applicant receive a trial by special court-martial empowered to adjudge a bad conduct discharge. The appropriate authority approved the applicant’s charges be referred to the special court-martial convened by Court-Martial Order Number 5, dated 9 July 2004. The applicant acknowledged receipt of the charge sheet referring him to the special court-martial. s. On 16 December 2004, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 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, 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 for the Good of the Service and indicated he would not submit statements in his own behalf. He did not submit statements in his own behalf. t. On an unspecified date, his company, intermediate, and senior commanders recommended the applicant be discharged UOTHC. u. On 5 January 2005, his first sergeant supported the applicant’s request to be discharged and stated he honorably served his country while deployed to Operation Iraqi Freedom from 4 April - October 2003. The applicant was in the only platoon that suffered a fatality. His misconduct warrants punishment, however his service to his country should be mitigating evidence when deciding whether or not to grant his request for discharge. On this same date, the Staff Judge Advocate recommended the applicant’s request to be discharged be approved. v. On 7 January 2005, the appropriate authority approved the applicant's chapter 10 request with issuance of an UOTHC discharge, reduction to the rank of private/E-1 and was not transferred to the Individual Ready Reserve per AR 635-200, paragraph 1-35. On this same date, the applicant’s duty status changed from confined by military authority to PDY. w. Orders dated 3 February 2005, assigned him to the U.S. Army Transition Point, Fort Hood, TX effective 7 February 2005 for separation processing. x. On 7 February 2005, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was discharged from active duty under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court- Martial) with an UOTHC characterization of service. He completed 4 years, 1 month and 29 days of net active service during this period including lost time from 18- 22 December 2002, 9 January - 7 February, 8 February - 2 March, 11-20 October, 1- 30 November 2003, 1 December 2003 - 28 November 2004, and 1 December 2004 - 6 January 2005 (total of 499 days) and was not awarded or authorized an award. 4. 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 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. 5. 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: 1. After reviewing the application and all supporting documents, the Board found the relief was not warranted. The Board carefully considered the applicants 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, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 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. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTES: A review of his record provides pertinent information is missing from his DD Form 214; as a result, correct his records by adding the Army Good Conduct Medal. 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. AR 635-200 (Personnel Separations - Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. 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) AR20210011026 1 1