IN THE CASE OF: BOARD DATE: 14 June 2023 DOCKET NUMBER: AR20230000221 APPLICANT REQUESTS: an upgrade of his bad conduct discharge (BCD) to an honorable discharge. 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) with a self-authored statement * three statements of support, dated 23 August 2022 to 29 August 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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: a. He has grown and learned much over the years. He accepts that he was wrong for leaving without the permission of his superior officers. His mother was undergoing surgery. He wanted to be by her side. He took an oath to put his country first, and he chose his family. It was an emotional decision. He was a great Soldier. It was not his intent to be absent without leave (AWOL). b. He is a husband and father now. He has changed his life for the better. He reaches out to troubled teens and is the minister of music at this church. 3. Having had prior service in the Army National Guard [see Administrative Notes], the applicant enlisted in the Regular Army on 14 August 2001 for a 4-year period. He served in Military Occupational Specialty (MOS) 21B (Combat Engineer). The highest rank he attained was specialist/E-4. 4. Two DA Forms 4187 (Personnel Action) show the following changes in the applicant's duty status: * Present for Duty (PDY) to AWOL on 28 July 2002 * AWOL to Dropped from the Rolls (DFR) on 27 August 2002 5. A DD Form 458 (Charge Sheet), dated 28 August 2002, shows he was charged with AWOL on or about 28 July 2002, and he continued to remain AWOL at the time the Charge Sheet was initiated. 6. A DD Form 616 (Report of Return of Absentee) shows the applicant was apprehended by civilian authorities and returned to military control on 6 February 2003. 7. Two DA Forms 4187 show the following changes in the applicant's duty status: * PDY to AWOL on 18 May 2003 * AWOL to DFR on 17 June 2003 8. A DD Form 458, dated 17 June 2003, shows he was charged with AWOL on or about 16 May 2003, and he continued to remain AWOL at the time the Charge Sheet was initiated. 9. A DD Form 616 shows the applicant was apprehended by civilian authorities and returned to military control on 18 July 2004. A DA Form 4187 shows his duty status was changed from DFR to Confined by Civilian Authorities (CCA) on that same date. 10. Two DA Forms 4187 show the following changes in the applicant's duty status: * CCA to AWOL on 19 July 2004 * AWOL to DFR on 19 August 2004 11. A DD Form 458, dated 19 August 2004, shows he was charged with AWOL on or about 19 July 2004, and he continued to remain AWOL at the time the Charge Sheet was initiated. 12. A DD Form 616 shows the applicant was apprehended by civilian authorities and returned to military control on 1 July 2006. 13. Two DA Forms 4187 show the following changes in the applicant's duty status: * PDY to Confined by Military Authorities (CMA) on 1 December 2006 * CMA to PDY on 11 September 2007 14. General Court Martial Order Number 14-1, Headquarters, Fort Stewart, GA, dated 19 April 2007, shows: a. He was found guilty of the following charges: * two specifications of AWOL, from on or about 18 May 2003 until on or about 18 July 2004, and on or about 20 July 2004 until on or about 1 July 2006 * five specifications of failure to go at the time prescribed to his appointed place of duty, during the period from on or about 13 July 2006 until on or about 11 August 2006 * one specification of failure to obey a lawful order, on or about 11 August 2006 b. He was sentenced to be reduced in rank/grade to private/E-1, confinement for one year, and a BCD. c. The sentence was approved, and the record of trial was forwarded to the Judge Advocate General of the Army for appellate review. 15. General Court-Martial Order Number 34, Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 6 February 2008, shows the sentence was finally affirmed, the provisions of Article 71(c) had been complied with, and the BCD was ordered to be executed. 16. The applicant was discharged on 27 June 2008, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3, by reason of court-martial, in the rank/grade of private/E-1. His service was characterized as bad conduct. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with 2 years,11 months, and 23 days of net active service, with lost time from 18 May 2003 to 17 July 2004, 20 July 2004 to 30 June 2006, and 1 December 2006 to 10 September 2007. 17. The applicant provides three statements of support: a. The applicant's spouse states, in effect, she met her husband while he was still in the military. He is a selfless, hardworking, loving human being. Together, they do community outreach, church activities, and donate to others. He has raised their children to become amazing young men. Life has not been easy, but a discharge upgrade will allow him to continue his education and to help young people make better decisions for the future. b. The applicant's friend states, in effect, the applicant has really been there for him and his family. He has assisted with fixing their house, babysitting their children, family fun days, and provided support in good times and bad times. No matter the situation, the applicant finds a positive outlook and spreads positivity. As a retired Veteran, himself, he recommends the applicant as a handyman to other Veterans and military families. He is dedicated, timely, and goes above and beyond. He is a man of high moral character who contributes to society. c. The applicant's father states, in effect, he grew up in a wholesome environment with both parents. He was instilled with Christian values, good morals, and taught the importance of duty and honor. He was taught to serve at a young age and those traits followed him into adulthood. As a young Soldier, he was faced with the choice of duty to country or commitment to a parent who suffered a very serious medical condition. His decision to put family before duty led him to a premature discharge. He shares his highs and lows in hopes of leading the next generation down a better path. He strives daily to do better and make a difference. 18. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 19. Regulatory guidance provides a Soldier will receive a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 20. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. The ABCMR is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Upon review of the applicant’s petition and available military records, the Board determined there was insufficient evidence of in-service mitigating factors for the patterns of misconduct and AWOL to weigh a clemency determination. 2. The Board found the letter of support provided by the applicant noteworthy and the Board commends the applicant on changing his life for the better. However, based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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 :X :X :X 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 NOTE(S): The applicant completed a period of initial active duty for training (IADT). He was awarded an MOS at the completion of training and returned to the control of the Army National Guard. Regulatory guidance provides that when a Reserve Component Soldier successfully completes IADT, the characterization of service is Honorable unless directed otherwise by the separation authority. Please reissue him a DD Form 214 for the period ending 13 January 2000, showing his character of service as Honorable. REFERENCES: 1. Title 10, U.S. 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 635-8 (Separation Processing and Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. b. 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. 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. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 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. 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) AR20230000221 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1