ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 April 2019 DOCKET NUMBER: AR20160016658 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AC97-09513 on 18 March 1998. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 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 (Report of Separation from Active Duty), for the period ending 20 August 1974 * three character reference letters FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC97-09513 on 18 March 1998. 2. The applicant provides three character reference letters in support of his request. These letters were not considered at the time of the Board's initial consideration of his request. Therefore, they constitute new evidence that warrants consideration by the Board at this time. 3. The applicant states he was told by his lieutenant to get a haircut. After getting his haircut, the same lieutenant said that his hair had not been cut and told him to go back to the barber shop. He returned to the barber shop where he had signed the log book that indicated he had been there. When he returned to the company, he was again confronted with the accusation of no haircut. He went back to the barracks, packed his bags and left. The confrontation with the lieutenant caused him to make an error in judgement. 4. The applicant enlisted in the Regular Army on 1 November 1972. 5. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on: * 1 October 1973, for failure to go at the time prescribed to his place of duty, on or about 22 and 24 September 1973, and for failure to obey a lawful order, on or about 17 September 1973 * 12 December 1973, for failure to obey a lawful order, on or about 24 November 1973 * 21 February 1974, for willfully disobeying a lawful command, on or about 8 February 1974 6. Charges were preferred against the applicant on 19 June 1974, for being absent without leave (AWOL) from on or about 25 February 1974 through on or about 14 June 1974. 7. The applicant consulted with legal counsel on or about 21 June 1974. 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. His election shows he elected to submit a statement. d. In his request for discharge, the applicant stated he had been harassed the whole time that he had been in. He stated the Army had done nothing for him and he just wanted to get out. 8. The separation authority approved the applicant's request for discharge on 6 August 1974, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and directed the issuance of an undesirable discharge. 9. The applicant was discharged on 20 August 1974. The DD Form 214 he was issued shows his service was characterized as UOTHC. 10. The applicant provides three character reference letters attesting to his church attendance, eagerness to learn, and desire to serve. The Board should consider his post-service achievements and/or accolades in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. Based upon the character statements provided by the applicant and the type of misconduct that resulted in the discharge, the Board found that clemency in upgrading the characterization of service was appropriate. Based upon the character statements included within the application, the Board concluded that the applicant learned from the events resulting in the discharge and thus an upgrade was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions. 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. Army Regulation 635-200 sets 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. 2. 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) AR20160016658 2 1