IN THE CASE OF: BOARD DATE: 30 June 2023 DOCKET NUMBER: AR20230000327 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Extract from Military Records (seven pages) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he wishes to have his character of service changed to honorable. He served out his original enlistment honorably. He thought his discharge status was under honorable conditions, not other than honorable. 3. The applicant enlisted in the Regular Army on 2 June 1997 for three years. His military occupational specialty was 19D (Cavalry Scout). 4. He reenlisted on 11 December 1999 for four years. 5. The applicant was absent without leave (AWOL) on 11 January 2002 and dropped from the rolls on 11 February 2002. He was apprehended by civil authorities on 28 December 2005 and returned to military control on the same date. 6. The applicant was present for duty on 5 January 2006. He was arrested by civilian police after being pulled over for a moving violation and then transported to Fort Hood, TX. 7. Court-martial charges were preferred against the applicant on 13 February 2006 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with AWOL from on or about 11 January 2002 and did remain so absent until on or about 5 January 2006. 8. The applicant was notified of summary court martial proceedings. He was advised of the rights available to him. The Record of trial by Summary Court Martial and the Department of the Army Report of Result of Trial dated 22 February 2006 show he did not object to trial by court-marital and that he was not represented by counsel. The applicant was found guilty of AWOL from on or about 11 January 2002 to on or about 5 January 2006. The court sentenced him to reduction to private/E-1, forfeiture of $849.00 pay for one month, and confinement (extended). The sentence was approved and would be executed. 9. A Report of Mental Status Evaluation, dated 15 February 2004, shows the applicant had the capacity to understand and participate in proceedings, was mentally responsible and met the retention requirements. The evaluation revealed no evidence of altered thought process or any other mental health condition that would explain the behavior that resulted in the initiation of this administrative action. The applicant denied any current suicidal and homicidal ideations. He was psychologically cleared for any administrative action deemed appropriate by command. 10. The applicant's immediate commander notified the applicant of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of misconduct- commission of a serious offense. 11. The applicant was advised of the rights available to him. He consulted with counsel and acknowledged that he was advised of the basis for the contemplated separation and its effects, the rights available to him and the effect of a waiver of his rights. a. He elected not to submit statements in his own behalf. b. He understood he may expect to encounter substantial prejudice in civilian life, he further understood he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he understood that he may expect to encounter substantial prejudice in civilian life. 12. The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, Chapter 14-12c. The commander noted the applicant was recommended for separation because he was AWOL from on or about 11 January 2002 to 5 January 2006. His commander recommended an UOTHC discharge, the chain of command concurred. 13. The applicant was released from confinement on 18 March 2006 for expiration of his sentence. 14. The separation authority approved the recommended discharge on 6 April 2004 and directed the issuance of an UOTHC Discharge Certificate. 15. The applicant was discharged on 12 April 2006. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense). His service was characterized as UOTHC. His Separation code was JKQ with a Reentry Code of 3. He completed 6 years, 11 months, and 11 days of net active service. He had two periods of lost time. 16. The applicant provides miscellaneous enlistment and reenlistment documents from his service record. 17. By regulation, Soldiers are subject to separation under Chapter 14, for misconduct - commission of a serious offense. A discharge UOTHC is normally appropriate under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 18. In reaching its determination, the Board can consider the applicant s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to Misconduct- serious offense following an extensive period of AWOL. 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 that 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 :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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, 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 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. b. Chapter 14 of this regulation established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A under other than honorable conditions discharge was normally considered appropriate. However, the separation authority could direct a general discharge if merited by the Soldier's overall record. 3. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service Discharge Review Boards and Service BCM/NRs on 25 July 2018, 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20230000327 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1