ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 April 2019 DOCKET NUMBER: AR20160016881 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Statement * Five Character 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1998014086 on 30 June 1999. 3. The applicant states he was discharged from the Army in 1977 with an other than honorable discharge as a result of smoking a small amount of marijuana. He has straightened out his life and hasn’t used any of the drug since then. He’s attempted to live a normal live but it’s been a struggle; he’s been fighting homelessness and traumatic brain injury (TBI) for the past 4 years. Despite having disabilities and a lack of a secure home he’s attempted to be a good father for his two sons. His kids and family love him which means everything to him. He’s unable to work due to a motorcycle accident and needs an upgrade so that he may collect a higher rate of disability. 4. On 6 April 1977 the applicant enlisted in the Regular Army. 5. The applicant received non-judicial punishment (NJP) on three different occasions for being absent without leave (AWOL). 1. 6. On 14 February 1978 Special Court-Martial Order (SCMO) Number 2 shows the applicant plead and was found guilty for being AWOL from on or about 17 December 1977 to on or about 27 December 1977. The sentence was adjudged on 23 January 1978. He was sentenced to 30 days restriction to the limits of the company area and forfeit of $50.00 per month for one month. 7. On 5 May 1978, separation orders were published; they were void of the reason or regulation discharged under. 8. His records do not have a separation packet; however his DD Form 214 shows: * Separation Date: 12 May 1978 * Total Active Service: 1 year and 27 days * Separation Authority: Chapter 10, AR 635-200 * Character of Service: Under Other Than Honorable Conditions * Lost Time: Approximately 10 days. 9. His records do not show charges being preferred against the applicant; they did not show he voluntarily requested a Chapter 10 under the provisions of AR 635-200. 10. The applicant states although he’s fighting homelessness, he’s turned his life around and after having a motorcycle and having a (TBI) he needs an upgrade to his benefits. He provides five character letters from family and friends sharing how he has turned his life around for the better and no longer using drugs. He also provides a letter from his case manager from the Volunteers of America Northern New England; he shares the applicant is a resident at the transitional homeless housing program. While in the program he’s been noted as a “straightforward guy” his responsible living is the beginning of a life on the mend. 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. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. One outcome discussed was that based upon the relatively short term of service prior to multiple occasions of misconduct, relief was not warranted. However, after looking at the length of the AWOL offenese (10 days) which resulted in the discharge, the Board found that the characterization of service received at the time of discharge was inappropriate. Therefore, the Board recommended upgrading the applicant’s characterization of service to under honorable conditions (general). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading his characterization of service to under honorable conditions (general). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to Honorable. 4/15/2019 X CHAIRPERSON Signed by: 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 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trial by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. 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. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. 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. a. 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 te upgraded service characterization. a.