IN THE CASE OF: BOARD DATE: 14 September 2020 DOCKET NUMBER: AR20200003138 APPLICANT REQUESTS: his Under Other than Honorable conditions (UOTHC) discharge be upgraded to General, Under Honorable Conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self Authored letter * DD Form 214 (Report of Separation From Active Duty), dated 25 June 1975 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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: a. He would like a review to upgrade his discharge from Under Other Than Honorable Conditions to General, Under Honorable Conditions. b. He requests a complete review of his military records and accomplishments instead of the last three months of service. He further states under Title 10 USC 972, enlisted members are required to make up time lost which totaled 52 days. c. He was not offered adequate counseling or rehabilitation for the cause of the lost time. His 13th Corps Support Command (COSCOM) Commander stated he could not offer him an out, but he could request a Chapter 10. The process and procedures were not familiar to him nor was it explained. He was reduced in rank from Private First Class (PFC)/E-3 to Private (PVT)/E-1 on 6 June 1975 and discharged 25 June 1975. d. To the best of his knowledge, his military career was on point until April 1975 when he became involved in a toxic relationship. It interfered with his performance of duty. Looking back, if he had been given the opportunity to receive counseling, his life would have been different today. e. He states he was not aware of any adverse information or records against him. His last duty assignment was Company C, 2nd Battalion, 7th Cavalry, 1st Cavalry Division, United States Army Forces Command. He was chaptered out by 13th COSCOM. 3. The applicant’s service records are not available. 4. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) ending in the period 25 June 1975 a. 29 June 1973 - he enlisted in the Regular Army b. Total Service for Pay - 2 years, 3 months and 1 day c. Total Active Service - 1 year, 10 months and 18 days d. Rank at discharge - Private (PVT)/E-1 e. Character of Service - “Under Other Than Honorable Conditions” f. Narrative Reason for Separation - “Chapter 10 AR 635-200 SPD KFS” g. Time Lost During this Period - AWOL from 3 April 1975 through 12 May 1975 (40 days). 5. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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 found insufficient evidence of error, injustice, or inequity. 2. The Board carefully considered the applicant’s request to upgrade his Under Other than Honorable conditions (UOTHC) discharge to General, Under Honorable Conditions. The Board also carefully considered the applicant’s contentions that he was not properly advised of the implications of his Under Than Honorable Conditions Discharge and that he was not afforded an opportunity for rehabilitation for his AWOL. Per regulation, the Board begins deliberations with an assumption of administrative regularity. The Board found insufficient independent corroborating evidence that the applicant was not afforded due process regarding his separation for his period of AWOL. Per regulation, the general court-martial convening authority may waive rehabilitative measures if the authority judges that rehabilitative measures will be ineffective. 3. Regarding clemency considerations, 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 misconduct that resulted in 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 :XX :XX :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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10, provides 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. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. Whenever there was doubt, it was to be resolved in favor of the individual. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions could have been issued only when the reason for the Soldier’s separation specifically allowed such characterization. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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 635-200 Paragraph 2-3 provides time lost to be made good. Every individual in active Federal service who renders himself unable for more than 1 day to perform duty will be liable, after a return to full duty status, to serve for such period as is necessary to complete his full term of service or obligation, exclusive of such time lost. a. Lost time in the sense of this regulation refers to periods of more than 1 day during which an individual on active duty is unable to perform duty because of (1) Desertion. (2) Absence without proper authority. (3) Confinement under sentence. (4) Confinement while awaiting trial or disposition of individual's case, if trial results in conviction. (5) Intemperate use of drugs or alcoholic liquor (6) Disease or injury, the result of individual’s own misconduct b. Time lost during an enlistment or induction period will be made good at the end of the enlistment or induction period, except that when an enlistment or period of induction is extended by law, time lost will be made good at the end of the extension. 5. AR 635-200, in effect at the time of the applicant’s service, paragraph 13-9, states: a. The general courts-martial convening authority may waive the requirements of para­graphs 13-7 (counseling) and 13-8 (rehabilitation) when he determines that further duty of the individual will, in his best judgment, create serious disciplinary problems or a hazard to the military mission or to the individual. b. The general court-martial convening authority may waive the requirements of paragraphs 13-7 and 13-8 when he determines that· the individual is obviously resisting all attempts to be rehabilitated or that rehabilitation will not produce the quality soldier acceptable in the baseline force. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200003138 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1