IN THE CASE OF: BOARD DATE: 22 February 2022 DOCKET NUMBER: AR20210012465 APPLICANT REQUESTS: * upgrade of his under other than honorable conditions discharge to honorable or under honorable conditions (general) * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Reassignment Orders * Transmittal Documents * Letter to Mother regarding applicant's Absent Without Leave (AWOL) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 his application and self-authored letter, in effect: a. He served in the Army from 2 October 1997 through 7 June 2000. He made the rank of specialist/E-4 (SPC) in less than 18 months of service and deployed in support of Operation Northern Watch in Saudi Arabia. Due to his clear record of exceptional performance, he was hand-selected to perform duties at the battalion/company as a personal driver, prior to his career ending incident happened. b. The incident happened, while he was at the National Training Center (NTC) in California for annual field operations training. He received a Red Cross message, through his first sergeant (1SG), that his brother had passed away. Per the 1SG's instructions, he was to wait until he initiated leave paperwork before he could leave the local area. c. Since he was the main beneficiary to his brother, his family needed him to sign the insurance paperwork to initiate the funeral arrangement. Any delay would cost his family, who was already financially unstable, more money. He explained this to his 1SG and the 1SG was to initiate the paperwork as soon as possible, which didn't happen. After three days of waiting, his mom (who has since passed away) contacted his 1SG and had a few choice words with him and the applicant's entire chain of command. d. After the conversation, the applicant's supervisor, at the time, told him to leave and he would work it out with the 1SG to take care of the leave paperwork, which didn't happen as the 1SG refused to accept his supervisor's request. While the applicant was home, the 1SG called him to tell him he had been declared AWOL. He was already emotional, stressed, and tired due to the loss of his brother and quite frankly, at the same time, he did not care. He was young and didn't understand the repercussions. e. Additionally, he felt like his leadership failed him and his family, in his time of need. He also felt like his punishment was reprisal because his 1SG told him his leadership chain didn't like how the applicant's mom talked to them, and since they got scolded from headquarters for how they handled the applicant's situation and they wanted to take it out on him. f. When he returned, he asked to speak freely and he told them how disappointed he was with their lack of caring and commitment to him and other Soldiers who had full commitment to them and the Army. This situation drained him emotionally to the point that he just wanted to get out of the Army by any means, so he took the discharge offer that was available to him. g. Why would he go AWOL, when he only had about six months left in his otherwise superlative career? They discharged several others, during that same period, for AWOL as well. Looking back on this now, he wishes he had retained legal counseling and fought this, but since he was frightened with the threat of a bad-conduct discharge and possible confinement through a court-martial for what they considered AWOL, he took an under other than honorable discharge option. The culture was definitely different then, than it is now. If it was now, he truly believes he would have gotten taken care of better. He is requesting that his discharge be upgraded to an honorable discharge because this one incident when he was young he held him back from his ultimate goal of becoming a Department of Defense (DoD) civil servant. 3. The applicant provides a Transmittal record, which shows several Soldiers who were listed as AWOL to include the applicant. The other documents provided by the applicant were contained in his service record. 4. On 2 October 1997, the applicant, at the age of 20 years old, enlisted in the Regular Army for a period of 3 years. His DA Form 2-1 (Personnel Qualification Record) shows he had prior service in the Army National Guard (ARNG) from May 1996 through August 1996. He attended one station unit training for the military occupational specialty (MOS) of 11M (Infantryman). 5. On 20 February 1999, the applicant was awarded the Joint Service Achievement Medal for Meritorious Service for the Armed Forces of the United States from 16 August 1998 through 13 February 1999. 6. On 18 November 1999, the applicant's duty status was changed from present for duty (PDY) to AWOL. On 18 November 1999, a Report to Suspend Favorable Personnel Actions (FLAG) was initiated on the applicant for adverse action. 7. On 26 November 1999 and 11 December 1999, the applicant's commander wrote a letter to his mother to notify her the applicant had been reported as being AWOL. 8. On 18 December 1999, his duty status was changed from AWOL to DFR (dropped from the rolls as a deserter). On 30 December 1999, his duty status was changed from DFR to attached/returned to military control. He had surrendered to military authorities. 9. On 4 January 2000, the applicant completed a memorandum subject: Medical Examination for Separation. He stated he did not desire a separation medical examination. 10. On 5 January 2000, the Personnel Control Facility (PCF) commander preferred a court-martial charge against him. His DD Form 458 (Charge Sheet) shows he was charged with one specification of AWOL from on or about 18 November 1999 to on or about 30 December 1999. 11. On 6 January 2000, after consulting with counsel, the applicant affirmed counsel had advised and the applicant voluntarily requested discharge in-lieu of trial by court- martial under chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). In his request, he stated no one subjected him to coercion and counsel had advised him of the implications of his request; he further acknowledged he was guilty of the charge. He elected not to submit a statement in his own behalf. He also stated he did not desire a physical evaluation prior to his separation. 12. In an undated memorandum, the applicant requested to be put on excess leave without pay and allowances. 13. On 10 April 2000, the applicant's commander completed a memorandum regarding the applicant's request for discharge, which shows he had been charged with one specification of AWOL totaling 42 days and surrendered to military authorities. He had become disillusioned with the military. Retention of him was not in the best interest of the Army. The commander recommended approval of the applicant's request and the issuance of a discharge under other than honorable conditions. 14. On 15 May 2000, the Acting Chief of the Criminal Law Division stated there were no legal objections to further processing of the of the separation in accordance with the unit commander's recommendation. 15. On 16 May 2000, the appropriate separation authority approved the applicant's request and directed his under other than honorable conditions discharge; the separation authority further ordered the applicant's reduction in rank to private/E-1. 16. On 7 June 2000, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 with an under other than honorable conditions discharge. He completed 2 years, 6 months, and 24 days of active duty service this period and 3 months and 22 days of prior active service. He had lost time from 18 November 1999 to 29 December 1999. He was awarded or authorized the Army Service Ribbon. 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. 18. Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application and all supporting documents, the Board found that relief was partially 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. Based upon a preponderance of evidence, his overall service, and guidance for consideration of discharge upgrade requests, the Board determined that the character of service the applicant received upon separation should be corrected as a matter of clemency, to a general discharge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF XX: XX: XX: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the correction addressed in Administrative Note(s) below, the Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 13 January 1992 showing his character of service as General, Under Honorable Conditions. 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 NOTE(S): 1. The applicant's records show he was awarded the Joint Service Achievement Medal, while serving in the Army. The award is not listed on his DD Form 214 for the period ending 7 June 2000. 2. Correct item 13 of the applicant's DD Form 214 for the period ending 7 June 2000 by adding the Joint Service Achievement Medal. REFERENCES: 1. Title 10, USC, 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, 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 and the Manual for Courts-Martial, included a punitive 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. Paragraph 7-1e (Reductions) stated Soldiers, who had been approved for an under other than honorable conditions discharge, were reduced to the lowest enlisted grade. 4. The Manual for Courts-Martial, Appendix 12 (Maximum Punishment Chart) showed both a bad-conduct and dishonorable discharge were punishments allowed for convictions of Article 86 (Absent without Leave for over 30 Days). 5. Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 6. 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) AR20210012465 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1