IN THE CASE OF: BOARD DATE: 4 March 2021 DOCKET NUMBER: AR20200001743 APPLICANT REQUESTS: The applicant, the widow of a deceased former service member (FSM), requests her late husband's under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 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), dated 14 February 2020 * Computer Institute of Technology Diploma, 13 January 1987 * State of Certificate of Marriage, dated 8 August 1997 * Award of Service Excellence with Citation, dated 24 November 1999 * Certificates of Award, Merit, and Completion, dated between 11 April 1994 and 20 September 2000 (five) * professional résumé * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 3 May 2001 * Army Review Boards Agency letter, dated 14 May 2001 * electronic mail correspondence, dated 14 February 2020 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. The applicant states her husband attempted to have his discharge upgraded in 2001. She would like this action moved forward so her husband's kids can be proud of him. 3. The FSM enlisted in the Regular Army on 31 August 1983. 4. The FSM accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 14 December 1984, for being absent without leave (AWOL) on or about 12 December 1984 * on 19 February 1985, for being absent from his unit on or about 3 February 1985, and for failure to go at the time prescribed to his appointed place of duty, on or about 21 February 1985 * on 7 March 1985, for wrongful use of some amount of marijuana and cocaine, between on or about 11 January and 21 January 1985 5. The FSM underwent a mental status evaluation on or about 20 March 1985. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he was psychiatrically cleared for any action deemed appropriate by command. 6. The FSM's commander notified the applicant on 29 April 1985 that he had initiated actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, by reason of misconduct – acts or patterns of misconduct. The commander noted the FSM had been formally counseled on numerous occasions. 7. The FSM consulted with counsel on 2 May 1985 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He requested a personal appearance and consideration of his case by an administrative separation board. He elected not to provide a statement in his own behalf. 8. The FSM's immediate commander formally recommended the applicant's separation on 9 May 1985, under the provisions of Army Regulation 635-200, Chapter 14. The separation authority directed the case be referred to a board of officers. 9. The FSM appeared before an administrative separation board on 19 June 1985. The board unanimously recommended his elimination from service for misconduct with the issuance of a UOTHC discharge. 10. The separation authority approved the recommended separation action on 26 July 1985, under the provisions of Army Regulation 635-200, Chapter 14, and directed the issuance of a DD Form 794A (UOTHC Discharge Certificate). 11. The FSM was discharged on 2 August 1985. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was reduced to the lowest enlisted grade and his service was characterized as UOTHC. 12. The FSM submitted an application to the Army Discharge Review Board (ADRB) in May 2001. The ADRB acknowledged receipt of the application but administratively closed his request without consideration by that board, due to the request being submitted after the expiration of the 15-year statute of limitations. The FSM was directed to petition the ABCMR; however, there is no record of him doing so prior to this request. 13. The applicant provides several certificates in support of the FSM’s request, which show his post service education and accomplishments. 14. The Board should consider the FSM's overall record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the FSM records and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant’s statement, the FSM record of service, the frequency and nature of his misconduct and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided evidence of post- service achievements or letters of reference in support of a clemency determination. However, based on a preponderance of evidence, the Board determined that the character of service the FSM 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 XXX XXX XX 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, 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 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. b. 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. c. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A UOTHC discharge was normally appropriate for a Soldier discharged under this Chapter; however, the separation authority could direct a general discharge if merited by the Soldier’s overall record. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service 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) AR20200001743 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200001743 5 ABCMR Record of Proceedings (cont) AR20200001743 4