IN THE CASE OF: BOARD DATE: 25 August 2020 DOCKET NUMBER: AR20200000493 APPLICANT REQUESTS: Reconsideration of his earlier request for an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110016030 on 22 February 2012. 3. The applicant states, in effect, he was young and made a poor decision. He is requesting an upgrade of his discharge based on his positive post service accomplishments. He has owned his own trucking business and he now owns an automobile transport business. The upgrade will erase the blemish and help him move forward with more positive accomplishments. 4. The applicant's service records show: a. On 23 September 1988, at age 18, the applicant enlisted in the Regular Army for 4 years. Following completion of initial training, he was assigned to Germany with duties in military occupational specialty 11C (Indirect Fire Infantryman) on 17 January 1989. b. On 14 January 1991, his unit in Germany reported him in an absent without leave (AWOL) status. Effective 13 February 1991, he was dropped from Army rolls. On 26 May 1993, he was returned to military control at Fort Knox, KY and he was assigned to the U.S. Army Personnel Control Facility (PCF), effective that same date. c. On 2 June 1993, the applicant's PCF commander preferred court-martial charges against him for being AWOL from 14 January 1991 to 26 May 1993. On the same date, after consulting with counsel, 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 (AR) 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 charges. He elected not to submit a statement in his own behalf. d. On 4 June 1993, the applicant requested to be placed on indefinite excess leave, pending completion of the discharge process. On 5 June 1993 he was placed on excess leave. e. On 29 June 1993, both the applicant’s immediate and intermediate commanders recommended approval of the applicant’s request and the issuance of an under other than honorable conditions discharge. 5. On 8 July 1993, the separation authority approved the applicant's request and directed the issuance of an under other than honorable conditions discharge; the separation authority also ordered the applicant's reduction to the rank/grade of private/ E-1. 6. On 23 August 1993, the applicant was discharged accordingly; his DD Form 214 shows he completed 2 years, 6 months, and 19 days of his 4-year enlistment contract, with 863 days of lost time. He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge Hand Grenade and Mortar, and Marksman Marksmanship Qualification Badge M-16 Rifle. 7. On 22 February 2012, the ABCMR denied his petition to upgrade his discharge, determining the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of his records. 8. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 9. During his active duty service, the applicant was AWOL for more than 30 days; the Manual for Courts-Martial shows the maximum punishment for this offense under the Uniform Code of Military Justice (UCMJ) included a punitive discharge. Soldiers charged with UCMJ violations that carried a punitive discharge among its punishments could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. 10. The applicant essentially acknowledges his misconduct, but asserts that he was young and made a poor decision. He is requesting an upgrade of his discharge based on his positive post service accomplishments. He has owned several businesses and he desires the upgrade to erase the blemish on his record and help him move forward with more positive accomplishments. At the time he committed his AWOL offense, he was age 21. 11. He completed 2 years, 6 months, and 19 days of his 4-year enlistment contract, with 863 days of lost time. In reaching its determination, the Board can consider the applicant's age, his petition, and his service record in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief and amend the ABCMR decision set forth in Docket Number AR20110016030 on 22 February 2012. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. The applicant did not complete a full enlistment, had no wartime service, no valorous personal awards and insufficient evidence of mitigating circumstances for the misconduct. As evidence of rehabilitation, the applicant stated that he has a successful trucking business. However, the Board found insufficient, independent, corroborating evidence of this. Therefore, the Board found limited evidence of post-service honorable conduct that might have partially mitigated the discharge characterization that resulted from his desertion from the Army. The Board agreed that the applicant’s discharge characterization as reflected on his DD Form 214 is appropriate. 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: 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): REFERENCES: 1. Title 10, USC, 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. AR 635-200 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. 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. 3. The Manual for Courts-Martial, United States, Appendix 12 (Maximum Punishment Chart) shows a punitive discharge was a punishment allowed for convictions of Article 86 (AWOL for over 30 Days). 4. 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) AR20200000493 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000493 6 ABCMR Record of Proceedings (cont) AR20200000493 4