IN THE CASE OF: BOARD DATE: 12 July 2023 DOCKET NUMBER: AR20230002357 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 24 October 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 4 February 2000 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 had a non-commissioned officer (NCO) who threatened his wife. He went through his chain of command, and he also contacted his Senators, but there was no resolution. He moved is family to and then turned himself in at Keesler Airforce Base because he did not know what else to do. a. He was told, due to the aforementioned circumstances, applying to the ABCMR for an upgrade of his characterization of service was his only alternative. b. He was told his characterization of service would be upgraded to under honorable conditions (general), but he was informed his discharge was not changed when he went to receive benefits at the Department of Veteran Affairs (VA). 3. The applicant enlisted in the regular Army on 14 August 1997. 4. The applicant’s record contains two DA Forms 4187 (Personnel Action), which show the below changes to his duty status: * Present for Duty (PDY) to Absent Without Leave (AWOL) – 3 August 1999 * AWOL to Dropped from Rolls (DFR) – 2 September 1999 5. On 3 September 1999, the applicant’s immediate commander reported the applicant absent from his unit, without authority, with the intent to remain away permanently. 6. On 14 September 1999, the applicant surrendered to military authorities and was returned to military control. 7. Court-martial charges were preferred against the applicant on 24 September 1999. His DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit, on or about 3 August 1999, and remaining so absent until on or about 23 September 1999. 8. On 30 September 1999, after consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial, under Army Regulation (AR) 635- 200 (Personnel Separations - Enlisted Personnel), chapter 10. The applicant acknowledged that he made the request of his own free will and was not coerced by any person. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charges 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 were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran’s Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State law and encounter substantial prejudice in civilian life because of an under other than honorable discharge. He elected not to submit a statement on his own behalf and elected not to undergo a physical evaluation prior to separation. 9. On 24 November 1999, the applicant's immediate commander submitted a formal recommendation for discharge under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial, with an under other than honorable conditions characterization of service. He noted, “Soldier has become disillusioned with the military. Retention of this individual is not in the best interest of the Army.” 10. On 19 January 2000, the separation authority approved the recommended discharge under the provisions of AR 635-200, chapter 10, in lieu of trial by court- martial, with an under other than honorable conditions characterization of service. 11. The applicant's DD Form 214 shows he was discharged on 4 February 2000, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial, in the rank/grade of Private (PV1)/E-1. His service was characterized as under other than honorable conditions, and he received a separation code of KFS and a reentry code of 4. He completed 2 years and 4 months of net active service. Additionally, his DD Form 214 does not list any awards or decorations. 12. The applicant did not provide nor do his record’s contain evidence of his petition(s) to his Senator’s office for assistance in upgrading his under other than honorable conditions characterization of service. 13. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 14. The pertinent Army regulation in effect at the time provided discharges under the provision of Army Regulation 635-200, chapter 10, where voluntary requests from the Soldier to be discharged in lieu of a trial by court-martial. 15. 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, all supporting documents, and the evidence found within the military record, 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. One potential outcome was to grant relief with an upgrade to general under honorable conditions based on the punishment being harsh for 30 days of AWOL. However, upon review of the applicant’s petition and available military records, the Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that could attest to his honorable conduct that might have mitigated the discharge characterization. 2. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provided that a member who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court- martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. Commanders will ensure that a member is not coerced into submitting a request for discharge for the good of the service. The member will be given a reasonable time to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. After receiving counseling, the member may elect to submit a request for discharge for the good of the service. The member will sign a written request, certifying that they were counseled, understood their rights, may receive a discharge under other than honorable conditions, and understood the adverse nature of such a discharge and the possible consequences. A discharge under other than honorable conditions was normally appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if such are merited by the member's overall record during the current enlistment. b. An honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. c. A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct and for the good of the service. 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 regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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) AR20230002357 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1