ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 April 2019 DOCKET NUMBER: AR20160015812 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge under other than honorable conditions be upgraded to under honorable conditions (general). 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 he refused medical treatment because his friend had a hernia treated but it paralyzed him for 8 weeks. In 1981 after he was discharged, he had the hernia repaired at Chapman General Hospital in Orange, California. Now that he is older and disabled, he would like his VA benefits and an honorable discharge. 3. On 12 February 1979, the applicant enlisted in the Regular Army. 4. On 16 October 1978, his medical records show he was seen in the emergency room for a hernia. 5. On 3 April 1979, he was charged for being absent without leave (AWOL) from 12 February 1979 to on or about 2 April 1979. 6. On 4 April 1979, he executed a medical examination for separation. His report of medical history indicates he had a ruptured/hernia A-Strain. The physician did not indicate whether the examinee was qualified of not qualified for separation. 7. On 4 April 1979, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 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 Army Regulation 635-200, chapter 10.  He signed a request for discharge for the Good of the Service and indicated he would submit statements in his own behalf. The applicant’s record does not have a copy of his statement. a. The applicant's chain of command recommended approval of his request and the appropriate separation authority approved the applicant's request.  b. The appropriate authority approved the applicant’s request for the good of the service, directing the applicant be reduced to the lowest grade possible and that his service be characterized as UOTHC. 8. On 24 April 1979, he was discharged accordingly and received an expulsion letter from entering military, Naval, or Coast Guard property. His DD Form 214 shows he completed 24 days of net active service. 9. The applicant states he is now older, disabled and would like to have his VA benefits and an honorable discharge. His records show he voluntarily requested a chapter 10 in lieu of a trial by court martial for being AWOL approximately 50 days. He submitted a statement on his behalf that is not available for review. In regards to his hernia, the available evidence acknowledge his hernia but do not show if it was treated. Additionally, his separation physical does not indicate if he was qualified or not qualified for separation. 11. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 12. ?The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the short term of service prior to the lengthy AWOL offense, the Board concluded that the characterization of service received at the time of discharge was appropriate. Therefore, the Board recommended denying the applicant’s request. Additionally, in making reaching this decision, the Board wanted to include the following regulatory guidance to the applicant to assist in understanding their recommendation: “Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case.” 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. 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. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. 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. c. 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. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 3. 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. ABCMR Record of Proceedings (cont) AR20160015812 0 3 1