IN THE CASE OF: BOARD DATE: 26 May 2021 DOCKET NUMBER: AR20210007156 APPLICANT REQUESTS: in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 while stationed at Fort Lewis, WA, he did not receive his pay for more than two months because his pay records were lost, supposedly. He went absent without leave (AWOL) until his discharge. He was not at fault. He had a family to feed and could not go without pay. 3. On 8 February 1980, the applicant enlisted in the Regular Army for a term of 3 years at the age of 19 years. 4. The applicant was assigned to Fort Sill, OK, for one station unit training (OSUT). On 8 November 1976, he went AWOL and surrendered to his unit on 21 November 1976, returning to military control. 5. On 27 May 1980, he was assigned to Fort Lewis, WA, in military occupational specialty 13B (Cannon Crewman). 6. On 16 October 1980, he went AWOL and returned on 20 October 1980. On 21 October 1980, he went AWOL. On 6 January 1981; he was apprehended by civilian authorities in Barnesville, OH, returned to military control, and assigned to the U.S. Army Personnel Control Facility, Fort Knox, KY. 7. On 9 January 1981, the applicant signed a medical evaluation memorandum and indicated he did not desire to undergo a medical examination prior to discharge. On 12 January 1981, he underwent a separation mental status evaluation. The examiner determined he had no significant mental illness; he was mentally responsible; he was able to distinguish right from wrong; he was able to adhere to the right; he had the mental capacity to understand and participate in board proceedings; and he met the retention standards prescribed in AR 40-501 (Medical Service – Standards of Medical Fitness). 8. On 15 January 1981, court-martial charges were preferred against the applicant for one charge and one specification of violating Article 86, Uniform Code of Military Justice (UCMJ), by being AWOL from 21 October 1980, remaining absent until 6 January 1981 (77 days). 9. The applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10, and submitted a statement on his own behalf. He stated: a. He was 20 years of age. He completed 11 years of school. He joined the service because he was unemployed and needed some kind of skill. There was pressure from his in-laws to join. The recruiter lied to him but he had high hopes of doing well. In September 1980, he received just a little of his pay. He received money from the American Red Cross and finance. Then, in September, mid-month, he did not receive any money and could only get $25.00 from finance. The Red Cross and Army Emergency Relief were unable to help him with past dues owed because he did not receive any pay. b. He sold his car and everything he and his wife owned while he lived in Washington to care for their 8-month old son. When he sent her and her son home by plane, the money was provided by her father. He tried to straighten his pay out, but nothing could be done because his rent was due. He then went AWOL. 10. His chain of command recommended approval and on 17 February 1981, the appropriate separation authority approved the applicant's request directing he be reduced to the Private E-1 and discharged with an under other than honorable conditions discharge. At the time the separation was approved, the applicant held the rank of Private E-2. 11. On 12 March 1981, he was discharged accordingly. His service was characterized as UOTHC. He completed 10 months and 16 days of his 3-year contractual obligation, with 56 days excess leave. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had 81 days lost time (AWOL). 12. On 13 August 1985, the Army Discharge Review Board denied his petition for an upgrade, determining his discharge was proper and equitable. 13. AR 635-200, chapter 10, provides for a voluntary discharge request in lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge (punitive discharge). Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. A medical examination is not required, but may be requested in writing by Soldiers in writing. If requested, the member will be required to undergo a mental status evaluation. According to the MCM, Article 86, UCMJ, the punishment for being AWOL for more than 30 days included a punitive discharge. 14. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency 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, 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 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 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 Army Board for Correction of Military Records (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), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. 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 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. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge (punitive discharge) could submit a request for discharge in lieu of trial by court-martial. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. e. A medical examination is not required for Soldiers being separation per chapter 10, but may be requested in writing by Soldiers in writing. A member to be processed under the provisions of chapter 10 who requests a medical examination will be required to undergo a mental status evaluation. 3. Per Manual for Courts-Martial, Article 86, UCMJ –– Absence without leave, for being AWOL for more than 30 days, punishment included a punitive discharge. 4. 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. 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, 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. 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) AR20210007156 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210007156 5 ABCMR Record of Proceedings (cont) AR20210007156 4