ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 April 2019 DOCKET NUMBER: AR20160016808 APPLICANT REQUESTS: * upgrade of his under other than honorable conditions (UOTHC) discharge * Board appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Mother’s Death Certificate * two character reference letters 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: a. He served with the best intentions and was a good Soldier. After he injured his knee he was treated like a third class citizen. He was also threatened with extra duty. The applicant was promised reassignment, but they [his command] did not follow through. b. He is now unable to receive medical assistance. He admits to taking excessive leave, because his mother was terminally sick. Nonetheless, he returned and was misrepresented until he was discharged. He still had the cast on his leg from surgery in Germany. When the Army can no longer use you they “dump” you. He was the perfect candidate to be discharged from the Army. His chain of command took his rank and “kicked” him out of the Army. He was reduced in rank from private first class (PFC)/(E-3) to private (PV1)/(E-1). 3. On 8 December 1981, the applicant enlisted in the Regular Army. 4. The complete facts and circumstances pertaining to the applicant's discharge are not on file. His discharge packet is not available; however, his record does contain previous Army Discharge Review Board (ADRB) and Army Board for Correction of Military Records (ABCMR) dockets related to the applicant’s discharge. 5. The ADRB Docket Number AD84-02023 shows on: * 22 March 1983, the applicant was charged for being absent without leave from 14 January 1983 to 10 March 1983 * 23 March 1983, he consulted with counsel and voluntarily requested to be discharged, he also declined to submit a statement on his own behalf * 4 April 1983, his chain of command recommended approval of his discharge under other than honorable conditions * 26 October 1983, the approval authority approved his discharge * 1 December 1983, he was accordingly discharged 6. Discharge Orders show the applicant was reduced from E-3 to E-1 in accordance with the provisions of paragraph 7-64c, Army Regulation 600-200 (Enlisted Personnel Management System). 7. The DD Form 214 that was issued shows he completed 1 year, 9 months, and 28 days of net active service. It also shows: * he was discharged in rank/grade of PV1/E-1, with an effective date of 26 October 1983 * he was discharged with an UOTHC character of service, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service, in lieu of trial by court martial * he had lost time from 14 January 1983 to 9 March 1983 * he was not awarded or authorized a personal award 8. In December 1985, the ADRB determined the applicant’s discharge was proper and equitable. His request for a discharge upgrade was denied. 9. In April 1997, the ABCMR denied his request to change his discharge from UOTHC to a medical discharge. 10. The applicant states he left because his mom was terminally ill and provides: a. A Character reference letters stating he was an upstanding man, hard worker, and willing to offer a helping hand to assist others. Overall, the applicant is a quiet and perceptive individual. He is a man of honor and has demonstrated good judgment. He is an upright citizen in the community who demonstrates Christian values on a daily basis. b. A Death Certificate that shows his mother died on 13 September 1984. 11. Army Regulation 635-200, chapter 10 states that 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 regulatory guidance also states that, 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. 12. Army Regulation 15-185 (ABCMR) provides that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 13. In reaching its determination, the Board should consider the applicant's petition, his service record, character reference letters, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. The Board found that based upon the type of misconduct and the passage of time, that clemency was warranted and that a personal appearance was unnecessary. For that reason, the Board recommended that the characterization of service be upgraded to general under honorable conditions. 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. 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 15-185 (ABCMR) provides that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. 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. 4. Army Regulation 600-200 (Enlisted Personnel Management System) prescribes policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel. Chapter 7-64 at the time provided reasons for reduction based on misconduct. The regulation stated, in pertinent part, that an enlisted Soldier could be considered for reduction of one or more grades by receiving an Article 15, Uniform Code of Military Conduct (UCMJ), court-martial, or conviction by civil court. Chapter 7-64c further stated that upon determination by the general court-martial authority that an individual was to be discharged from service under other than honorable conditions, individuals would be reduced to the lowest enlisted grade. Board action was not required for a reduction of this nature. The commander exercising general court-martial jurisdiction would, when directing a discharge under other than honorable conditions, or upon receipt of directive from higher authority, direct reduction of the individual to PVT/E-1. 5. 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. a. 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. b. 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. 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