ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 February 2019 DOCKET NUMBER: AR20160014501 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD). 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) * DD Form 214 (Certificated of Release or Discharge from Active Duty) for the period ending 13 March 1981 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 the UOTHC he received was warranted initially; however, since 1981, he has married, lived a proper life with no criminal record, and has had a clean work history. 3. The applicant enlisted in the Regular Army on 31 July 1979. 4. The applicant received nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 10 March 1980, for being absent without leave (AWOL) from on or about 7 January through on or about 26 January 1980 * on 11 April 1980, for being absent from his place of duty on or about 2 April 1980 5. The applicant was arrested by civilian authorities on 20 May 1980. He was confined pending trial on three counts of writing bad checks and three counts of forgery. 6. A DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 22 October 1980, shows the applicant was convicted by a civilian court on 15 September 1980. He was given one year probation and directed to return to his unit. The applicant was reported as AWOL on or about 22 September 1980. 7. Court-martial charges were preferred against the applicant on 5 January 1981, for seven periods of AWOL. Additional court-martial charges were preferred on 10 February 1981, for his AWOL period from on or about 4 December 1980 through on or about 3 February 1981. 8. The applicant consulted with legal counsel on 11 February 1981. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions 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 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. c. He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements. 9. The appropriate authority approved the applicant's request for discharge on 4 March 1981, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He directed the applicant receive a UOTHC discharge. 10. The applicant was discharged on 13 March 1981. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and his service characterization was UOTHC. 11. The applicant was charged commission of offenses punishable under the UCMJ for which a punitive discharge is authorized. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 12. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance. The Board finds the applicant's discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. The Board finds his separation was both proper and equitable. 2. The applicant had multiple issues during his short time of service from 31 July 1979 to 13 March 1981 with multiple periods of absent without leave, absent from his place of duty, three counts of writing bad checks and three counts of forgery and conviction by a civilian court. The Board recognizes the applicant has married, no criminal record, and has a clean work history since his discharge. However, the greater weight of evidence, even when applying liberal consideration standards, does not indicate that the applicant’s duty performance and behavior generally met the standards of acceptable conduct and duty performance as described in AR 635-200. Consequently, the applicant has not demonstrated by a preponderance of evidence that an honorable discharge is warranted. 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. ___________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. ADMINISTRATIVE NOTE(S): Not Applicable ? 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 separation of enlisted personnel. a. 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. b. 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. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed 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 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. ABCMR Record of Proceedings (cont) AR20160014501 4 1