ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20190001929 APPLICANT REQUESTS: * Reconsideration of his earlier request to upgrade his under other than honorable conditions discharge to general under honorable conditions * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. Incorporated herein by reference are military records which were summarized in the respective previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR2003088724 on 23 October 2003 and AR2005000659 on 1 December 2005. 2. The applicant states, when he was discharged, the Army lawyer said he should sign the release papers and, after 5 years, his character of service would be upgraded to general under honorable conditions. 3. The applicant's service records show: a. He enlisted into the Regular Army on 12 February 1993 for a 4-year term; he 20 yeawrsaosld. Following initial training, orders assigned him to Korea; he served in Korea from on or about 12 June 1993 until on or about 9 June 1994 and reassigned to Fort Hood, TX; he arrived on or about 13 July 1994. b. Effective 1 December 1994, his chain of command promoted him to specialist (SPC)/E-4. On 19 June 1995, his Fort Hood unit reported him as absent without leave (AWOL) and, effective 19 July 1995, dropped him from Army rolls. On 17 October 1997, civil authority arrested and returned him to military control; orders reassigned him to the U.S. Army Personnel Control Facility (PCF) at Fort Sill, OK, effective 17 October 1997. c. On 21 October 1997, his PCF commander preferred court-martial charges against him for AWOL from 19 June 1995 until 17 October 1997 (851 days). d. On 23 October 1997, after consulting with counsel, the applicant voluntarily, and in writing, 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 affirmed no one subjected him to coercion and counsel had advised him of the implications of his request. He also acknowledged he was guilty of the charge. He elected not to submit a statement in his own behalf. e. On 27 January 1998, his PCF commander recommended approval of the applicant's request, and noted the applicant had gone AWOL due to personal reasons and because he was disillusioned with the military. f. On 29 January 1998, the separation authority approved the applicant's request and directed his under other than honorable conditions discharge; he also ordered the applicant's rank reduction from SPC to private/E-1. On 18 February 1998, the applicant was discharged accordingly; his DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he completed 2 years, 7 months, and 26 days of his 4-year enlistment, with lost time from 19950619 through 19971016. He was awarded or authorized: * Army Achievement Medal (2nd Award) * National Defense Service Medal * Army Service Ribbon * Two marksmanship qualification badges g. On 2 February 2002, he petitioned the Army Discharge Review Board (ADRB) for an upgraded character of service. He argued, in effect, the separation authority did not consider numerous facts relevant to his case; the nature of his discharge was unfair and caused him to be slandered. His unit had ruined his career, and disrespected him because of his race. In addition, his personal belongings were never returned to him. He acknowledged he had made a mistake, but no one allowed him to fix it. On 11 March 2003, after considering the applicant's arguments and available evidence, the ADRB denied his request. h. On 27 March 2003, he applied to the ABCMR, requesting the removal of the AWOL period from his records; he also asked to have his overseas service in Korea reflected. He maintained he was on leave when his unit reported him as AWOL; he was in Korea from 1993 until 1994. The Board determined the evidence was insufficient to grant the portion of his request pertaining to his AWOL period, but his overseas service had been inappropriately omitted from his DD Form 214; the Board issued a DD Form 215 (Correction of DD Form 214) to show 1 year of Foreign Service. i. On 24 March 2005, he requested the Board reconsider his case, stating, in effect, his leadership had shown hatred toward him and separated him using command influence. (1) He maintained his chain of command did not follow proper procedures and denied him his due process. As a result, he suffered a wrongful discharge, was stripped of his rank, lost his access to the GI Bill, and the Army never returned his personal property. (2) The Board noted, although the applicant indicated this was a request for reconsideration, the applicant was not specifically addressing his earlier claims. As such, the Board evaluated his request in terms of an upgraded character of service. After reviewing all available evidence, the Board denied his request, based on finding the applicant had voluntarily requested discharge and his separation was in conformance with applicable regulations. j. On 2 June 2010, the applicant requested reconsideration of his previous request for an upgraded character of service. The Board returned his request without action because it was not submitted within 1 year of the Board's earlier decision. 4. Army Regulation (AR) 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR on a case-by-case basis. 5. The applicant asserts, in effect, his military attorney claimed his character of service would be upgraded to general under honorable conditions after 5 years; the Army has never had a policy of automatically upgrading character of service. For consideration of an upgrade, applicants are required to submit applications, within statutory time limits, to the Army Discharge Review Board or the ABCMR. 6. During his active duty service, the applicant was AWOL for more than 30 days; per the Manual for Courts-Martial in effect at the time, the maximum punishment for this offense included a punitive discharge. Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, the nature of his misconduct, the length of his absence and whether to apply clemency. The Board found insufficient evidence of mitigating factors for the misconduct and the applicant provided no evidence of post service accomplishments or letters in support of clemency. The Board determined that the character of service the applicant received was not in error or unjust. The Board further determined a personal appearance by the applicant was not required in the interest of justice. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 Numbers AR2003088724 on 23 October 2003 and AR2005000659 on 1 December 2005. ___________X________________ Chairperson 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): NA 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. AR 600-8-22 (Military Awards) states: a. The Korea Defense Service Medal is authorized for members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The eligibility period is from 28 July 1954 to a date to be determined by the Secretary of Defense. Service members must have been assigned or attached to units operating in the area of eligibility for 30 consecutive or for 60 nonconsecutive days. b. Effective 1 August 1981, all members of the Active Army are eligible for the award of the Overseas Service Ribbon based on successful completion of overseas tours. 3. As a result, amend his DD Form 214, ending 18 February 1998, by adding the Korea Defense Service Medal and the Overseas Service Ribbon. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. b. 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 at any time after the charges were preferred. The request had to include the Soldier's admission of guilt. 2. The Manual for Courts-Martial, United States, 1984, Appendix 12 (Maximum Punishment Chart) showed the maximum punishment for Article 86 (AWOL for more than 30 days when terminated by apprehension) included both a dishonorable and bad conduct discharge. 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 (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. 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. 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. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings on a case-by-case basis.