ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20180013487 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20090020009 on 20 May 2010. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. Additionally, he requests correction of his record to show he was awarded the Army Commendation Medal (ARCOM). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Travelope, dated 20 June 1984 with flight itinerary * Letter of Debarment, issued by Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, NJ on 20 May 1986 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 20 May 1986 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090020009 on 20 May 2010. 2. The applicant states, while on leave he missed his flight to Germany. He called his original Army recruiter, who told him not to worry because he would take care of things. His recruiter called him back and said it would be easier to just get a hardship discharge. He had planned to make the Army a career; however, he was charged with being absent without leave (AWOL) and given a UOTHC discharge. A couple of months prior to this incident he was awarded the ARCOM and he was to receive a promotion when he got to his next duty station. Since his discharge, he has always been gainfully employed and he still works at General Motors. 3. The applicant enlisted in the Regular Army on 3 March 1983. 4. The applicant received reassignment orders to Germany with a report date not later than 16 August 1984. 5. Court-martial charges were preferred against the applicant on 7 March 1986 for violations of the Uniform Code of Military Justice (UCMJ). Specifically, he was charged with being AWOL from on or about 16 August 1984 through on or about 5 March 1986. 6. The applicant consulted with legal counsel on or about 7 March 1986. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. 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. c. He elected not to submit a statement in his own behalf. 7. The separation authority approved the applicant's request for discharge on 10 April 1986 and directed the issuance of a UOTHC discharge. 8. The applicant was discharged on 20 May 1986, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of court-martial. His service was characterized as UOTHC. The DD Form 214 he was issued does not list the ARCOM as an awarded or authorized decoration. 9. The applicant’s record contains no evidence that confirms he was awarded the ARCOM. 10. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 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 did not find sufficient evidence to amend the decision of the ABCMR set forth in Docket Number AR20090020009 on 20 May 2010. The Board found that the applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. Neither did the Board find sufficient evidence of post- service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization 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 to amend the decision of the ABCMR set forth in Docket Number AR20090020009 on 20 May 2010. 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): Not Applicable 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. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. It states, the ARCOM may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7b provides that 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. b. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, 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 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.