IN THE CASE OF: BOARD DATE: 5 October 2023 DOCKET NUMBER: AR20230001870 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * Letters of Recommendation (three) * Associate’s Degree 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 was not given thorough guidance at the time of discharge. He has grown in character since that time. Prior to the issue that caused the discharge, he had served honorably for three years. He was fast tracking in rank and responsibility while assigned to the Old Guard. He wanted to pursue Airborne Infantry and eventually Special Forces, so he reenlisted and was transferred to the 1/508th Armored Brigade Combat Team in Vicenza, Italy. His experience there was completely different than any of his experiences in the Old Guard. He struggled and did not like how it was working out. Instead of acting like a leader, he made an immature decision and went absent without leave (AWOL). His decision to go AWOL was wrong, and he continues to work on himself. He has completed his associate’s degree and earned his Emergency Trauma Technician certification. He owes the Army three years and desires to return to service to give back to his country. He wants to reenlist and serve honorably. 3. The applicant enlisted in the Regular Army on 30 March 1995. Upon completion of training, he was awarded Military Occupational Specialty 11B (Infantryman). He reenlisted on 8 August 1997 for a 4-year period. The highest rank/grade he attained was specialist/E-4. 4. On 18 July 1998, the applicant was reported as AWOL. He was dropped from the rolls as a deserter. He surrendered to military authorities on 5 January 1999. 5. Court-martial charges were preferred against the applicant on 11 January 1999 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 18 July 1998 until on or about 5 January 1999. 6. On 12 January 1999, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a bad conduct discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. b. He declined to submit a statement in his own behalf. c. He declined a physical evaluation prior to separation. 7. On 5 May 1999, the applicant's commander recommended approval of the applicant's request for discharge, and further recommended the issuance of an UOTHC discharge. 8. By legal review on 2 June 1999, the applicant’s Chapter 10 separation action was found to be legally sufficient for further processing. 9. Consistent with the chain of command’s recommendations, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 2 June 1999. He further directed the applicant’s reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 10. The applicant was discharged on 21 June 1999. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was assigned Separation Code KFS and Reentry Code 3. He completed 3 years, 9 months, and 1 day of net active service this period with 196 days of lost time. He was awarded or authorized the: * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Parachutist Badge * Expert Marksmanship Qualification Badge with Grenade Bar * Sharpshooter Marksmanship Qualification Badge with Rifle Bar 11. The applicant's DD Form 214 does not show his continuous honorable active service period information that is required for members who honorably served their first term of enlistment [see Administrative Notes]. 12. The applicant provides three letters of recommendation that collectively support his desire to reenlist in the Alaska Army National Guard. These letters speak to his professionalism, hard work, volunteerism, and dedication. These letters are provided in their entirety for the Board’s review within the supporting documents. 13. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 14. 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: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense 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. 3. A majority of the Board found insufficient evidence of in-service mitigating factors and found the evidence of post-service achievements and letters of recommendation the applicant provided insufficient in support of a clemency determination. Based on a preponderance of evidence, a majority of the Board determined the character of service the applicant received upon separation was not in error or unjust. 4. The member in the minority found the evidence of post-service achievements and letters of recommendation the applicant provided do support clemency. The member in the minority determined the applicant’s character of service should be changed to under honorable conditions (general). 5. The Board concurred with the corrections described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: Other than the corrections addressed in Administrative Note(s) below, 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 otherwise 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): A review of the applicant's record shows his DD Form 214 for the period ending 21 June 1999 is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE SERVICE FROM 950330 UNTIL 970807 REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-8 (Separation Processing and Documents) provides: for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable, enter Continuous Honorable Active Service From" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. 4. 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. 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. c. Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 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/NR) 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) AR20230001870 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1