ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 October 2020DOCKET NUMBER: AR20200002455 APPLICANT REQUESTS: His 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 Provisionsof Title 10, U.S. Code, Section 1552), dated 10 December 2019 .DD Form 214 (Report of Separation from Active Duty), for the period ending24 August 1979 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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file. 2.The applicant states he was told during his court-martial proceedings that he couldhave his discharge upgraded within six months of his discharge. He has tried throughthe years with Department of Veterans Affairs representatives in Montana, with noresults or response. 3.The applicant enlisted in the Regular Army on 22 March 1977. 4.The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows hewas reported as absent without leave (AWOL) from on or about 17 August 1977 throughon or about 19 August 1977, and he was confined from on or about 5 April 1978 throughon or about 11 May 1978. 5.The applicant accepted non-judicial punishment on 13 July 1978 under theprovisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for withoutauthority, failing to go at the time prescribed to his appointed place of duty, on or about4 July 1978. 6.The applicant's Personnel Qualification Record – Part II shows he was againreported as AWOL from on or about 31 May 1979 through on or about 10 June 1979.7.The applicant was arrested on 11 June 1979 by civil authorities in Yakima,Washington, while in an AWOL status. He was arrested for assault and was releasedon 22 June 1979 without a trial. All fines and sentences were suspended on the condition that he leave Yakima Indian Reservation and never return.8.The applicant underwent a mental status evaluation on 16 July 1979. The relevantDA Form 3822-R (Report of Mental Status Evaluation) shows he had normal behavior,was fully alert and oriented, and had clear thought process and normal thought content.The evaluating physician determine he had the mental capacity to understand andparticipate in any administrative proceedings and he was psychiatrically cleared for anyadministrative action deemed appropriate by his Command.9.Court-martial charges were preferred against the applicant on 26 July 1979 forviolations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (ChargeSheet) shows he was charged with:•being AWOL, from on or about 31 May 1979 through on or about 11 June 1979•wrongfully possessing a firearm and ammunition, with one live round in a firingposition, such items having been received by him unlawfully after shipment ortransportation in interstate or foreign commerce, on or about 14 July 1979•wrongfully possessing an explosive device, such item having been received byhim unlawfully after shipment or transportation in interstate or foreign commerce,on or about 14 July1979•unlawfully carrying concealed weapons; specifically, one 9" fish knife, one15" wooden club, one 30" metal pipe, and one hand grenade simulator, on orabout 14 July 197910.The applicant consulted with counsel on 13 August 1979. He was advised of thebasis for the contemplated trial by court-martial, the maximum permissible punishmentauthorized under the UCMJ, the possible effects of an under other than honorableconditions discharge, and the procedures and rights that were available to him.a.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial. 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. b.He was advised he could submit any statements he desired in his own behalf.He elected to submit a statement in his own behalf, wherein he stated, in effect, that he felt it best for the Army if he was out because while he was in the Army, he had so much bad luck. He was married and had a little son in Washington but his wife could not get along with the Army life. He tried to hold his family together but one day he came home and his wife had gone back to Montana and she wanted a divorce. After the event with his wife, his sister was severely beaten up by three men and she died. The loss of his sister really hurt him and made him mad because the law could not touch the men that did it. He also lost his grandmother to cancer. Throughout his time in the Army, he had to deal with people making fun of him and his name. All of these things made him feel that he would be better off being with his people and being an Indian again. 11.The separation authority approved the applicant's request for discharge in lieu oftrial by court-martial; however, the separation authority's approval memorandum is notavailable for review. 12.The applicant was discharged on 24 August 1979, under the provisions of ArmyRegulation 635-200, Chapter 10, in lieu of trial by court-martial. His DD Form 214shows he was discharged in the lowest enlisted grade and his service wascharacterized as UOTHC. 13.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge. Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial. 14.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1.The Board carefully considered the applicant's request, supporting documents,evidence in the records, and published Department of Defense guidance forconsideration of discharge upgrade requests. The Board considered the applicant'srecord of service, the frequency and nature of his misconduct, the reason for hisseparation, and whether to apply clemency. 2.The Board found the statement the applicant provided in support of his request fordischarge to be sufficient evidence of in-service mitigating factors to support a favorable clemency determination. Based on a preponderance of evidence, the Board determined that the applicant's character of service should be upgraded to under honorable conditions (general). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : GRANT FULL RELIEF :XXX :XXX GRANT PARTIAL RELIEF : : GRANT FORMAL HEARING : :XXX : : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief. As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by reissuinghis DD Form 214 to show his service was characterized as under honorable conditions(general) and to show he held the rank/grade of private first class/E-3 with an effectivedate of pay grade of 30 November 1978. 2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief. As a result, the Board recommends denial of so much ofthe application that pertains to an honorable discharge. 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. REFERENCES: 1.Title 10, USC, Section 1552(b), provides that applications for correction of militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so. 2.Army Regulation 635-200, in effect at the time, set forth the basic authority for theseparation of enlisted personnel. a.Paragraph 3-7a provides that an honorable discharge is a separation with honorand 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.Paragraph 3-7b provides that a general discharge is a separation from the Armyunder 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 10 of that regulation provides, in pertinent part, that a member who hascommitted 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. 3.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations. Clemencygenerally refers to relief specifically granted from a criminal sentence. Boards forCorrection of Military/Naval Records may grant clemency regardless of the court-martialforum. However, the guidance applies to more than clemency from a sentencing in acourt-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 andprinciples 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//