ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 July 2020 DOCKET NUMBER: AR20190013364 APPLICANT REQUESTS: in effect, a reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20090016025 on 2 February 2010. Specifically, the applicant requests an upgrade of his character of service from under other than honorable conditions (UOTHC) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * Attached handwritten statement (undated) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 ABCMR in Docket Number AR20090016025 on 2 February 2010. 3. The applicant states he received a Red Cross message that his father had cancer and that he had less than a month to live. The applicant requested emergency leave during a time his unit was preparing to leave Germany and fellow Soldiers were receiving transfer orders back to the United States. The applicant states he was informed that he would receive his orders and would be contacted on where to go while on emergency leave; however, the applicant states that no one from his unit contacted him and he never received orders. He signed in at his nearest military installation to avoid his status being absence without leave (AWOL). As time passed, the applicant received instructions to go to Fort Sill, OK where he processed out of the U.S. Army. The applicant was only 20 years old at the time and did not have any assistance from his unit chain of command. He wishes that he had received his orders and this situation would have been avoided. Since leaving the military, the applicant has raised two daughters and ensured they finished college. His oldest daughter has a master’s degree in criminal justice and currently works for the Arkansas state police in the crimes against children division. His youngest daughter has a degree in nursing and still attending college in hopes of being a college professor. The applicant also has two grandchildren, he has remained an active member of his community, and he encourages young kids to join the military. The applicant believes that joining the military is one of the most rewarding experiences he ever had. He never regrets the day he volunteered to take a fellow Soldier’s place to deploy to Desert Storm. The applicant states he would do it again without hesitation. The applicant believes his request should be considered because he thinks he did everything right by trying to get to a duty station. He knows it has been a long time since his discharge but he frequently thinks about the opportunity that he could have had to retire as a Soldier. He admits that some of the mistakes were his fault and he does not blame any particular person for receiving his other than honorable conditions discharge. He requests that the Board take into consideration his circumstances at the time of his discharge and grant him an upgrade. The applicant resides in San Antonio, TX, with his fiancée who works for the local veterans' affairs hospital. He would love to be an honorable U.S. Army veteran husband to his fiancée and wishes that the Board would consider and award him with the honor of an upgrade to honorable discharge. The applicant kindly thanks the Board. 4. The applicant enlisted in the Army Reserve on 25 October 1988. After initial entry training, he was awarded military occupational specialty 12B (Combat Engineer). On 4 October 1990, the applicant enlisted in the Regular Army in Little Rock, Arkansas, for 4 years, in the pay grade of E-2. He was transferred to Germany on 12 October 1990 and he was promoted to the pay grade of E-3 on 1 February 1991. 5. A DA Form 31 (Request and Authority for Leave) shows the applicant requested emergency leave from 12 December 1991 to 2 January 1992. The applicant subsequently requested an extension of his leave to 11 January 1992. Block 30 (Remarks) of the DA Form 31 states, “In case of emergency contact your 1SG or Commander.” 6. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 11 February 1992, shows a flag was initiated on 12 January 1992 due to an adverse action (code "A"). On 11 February 1992, the applicant had been AWOL for 30 days. 7. On 12 January 1992, the applicant’s chain of command sent a letter to the applicant’s next of kin (his mother) informing her that the applicant was AWOL, and stating the consequences of his continued absence from his unit. On 11 February 1992, the chain of command sent another letter to his next of kin that informed that the applicant had been dropped from the rolls, administratively classified a deserter, and further consequences of his continued absence. 8. The applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was marked AWOL on 12 January 1992 and dropped from the rolls (desertion) on 11 February 1992. The DA Form 2-1 also shows that applicant was marked as a returnee on 10 July 1992 at Fort Sill, OK. 9. A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) dated 3 April 1992 shows that applicant was wanted for without authority and with intent to remain away therefrom permanently absenting himself from his unit from 12 January 1992 to 11 February 1992 10. A DD Form 616 (Report of Return of Absentee) and various documents show that the applicant was arrested and confined by civilian authorities on 10 June 1992. He was confined to the Faulkner County Jail, Conway, AR for violation of a controlled substance and restored to the rolls for B Battery, Personnel and Support Battalion Fort Sill, OK. 11. A Medical Examination for Separation - Statement of Option, dated 13 June 1992, shows that the applicant understood that he was not required to undergo a medical examination for separation from active duty. The document shows the applicant did not desire a separation medical examination. 12. Court-martial charges were preferred against the applicant on 10 July 1992 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 12 January 1992 through on or about 10 July 1992. 13. The applicant consulted with legal counsel on or about 14 July 1992: a. He was advised of the basis for a 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 (AR) 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 to submit statements in his own behalf; however, his records do not contain the statements he provided at the time of his discharge request. 14. The applicant's immediate commander subsequently recommended approval of the applicant’s request that he be separated from the service and under the provisions of AR 635-200, paragraph 10, for the good of the service. The commander opined that the applicant has become disillusioned with the military. Retention of this individual is not in the best interest of the U.S. Army. He further recommended an UOTHC discharge. 15. On 26 August 1992, the chief of the criminal law division reviewed the applicant’s request and found no legal objections to the further processing of the applicant’s chain of command recommendations. 16. The separation authority approved the applicant's request for discharge on 27 August 1992, under the provisions of AR 635-200, Chapter 10, for the good of the service, and directed his reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 17. Orders 246-34, dated 2 September 1992 reassigned him to the U.S. Army Separation Transfer Point. 18. The applicant was discharged on 15 September 1992, under the provisions of AR 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. The DD Form 214 he was issued shows he was credited with 2 years, 3 month, and 6 days of net active service, 1 year, 7 months, and 15 days of inactive service, and his service was characterized as UOTHC. 19. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement (circumstances regarding the period of AWOL), his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090016025, dated 2 February 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. 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service. b. Paragraph 3-7a provides that 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. c. 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. 3. 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. //Nothing Follows// ABCMR Record of Proceedings (cont) AR20190013364 5 1