ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20160017054 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) discharge to general. 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) * Mayor Dennis Liles letter (not signed) * Character reference letter 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 was promised that his discharge would be upgraded to a general character of service after 6 months. He would like to receive health benefits and possibly disability benefits. 3. On 4 January 1983, he enlisted in the Regular Army. 4. On 15 July 1984, he was absent without leave (AWOL) and did not return to military custody until he was apprehended by civilian authorities on 21 February 1985. 5. On 27 February 1985 court-martial charges were preferred against him for being AWOL from 15 July 1984 to 21 February 1985. Approximately 221 days. 6. On the same date, the applicant voluntarily requested a discharge for the good of the service, in-lieu of trial by court-martial, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. 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 provisions of AR 635-200, chapter 10. He indicated he would not submit statements in his own behalf and that there was no automatic upgrading nor review of a less than honorable discharge. b. His chain of command recommended approval of his request under other than honorable conditions. c. The appropriate separation authority approved the applicant’s discharge request for the good of the service and directed the issuance of a UOTHC discharge certificate. 7. On 9 May 1985, the applicant was discharged accordingly. His DD Form 214 shows he completed 1 year and 9 months of net active service. He had lost time from “15 July 1984 to 20 February 1985.” He was not awarded a personal decoration. 8. In support of his case, the applicant provided: a. An unsigned letter from Mayor X stating in part, as current Mayor of the town of Snow Hill, and as a manager of special services at O'Berry Neuro-medical Treatment Center, Goldsboro, North Carolina, he has had the opportunity to observe the applicant in a professional and personal capacity. The applicant has been employed with the State for many years. In that time, the applicant has proven to be a dependable, hard-working individual who seeks to make every effort to improve what are often demanding work challenges. b. A character reference letter from his brother, retired command sergeant major X stating in part, he is requesting the Board approve the applicant’s request for upgrade of his UOTHC discharge that he received over 30 years ago. The applicant was a very young Soldier and made a mistake early in his life. The applicant paid the price for that mistake by receiving the UOTHC, and having it affect his life for the next 3 decades. Soldiers make mistakes and are granted leniency while being held accountable. His brother is a man of honor and has truly been rehabilitated. He is loyal to our country, loyal to his family and friends and works hard every day to make things better for his family. He has not had any criminal or significant legal issues since this infraction. 9. The record contains no indication of procedural or other errors that would tend to have jeopardized the applicant’s rights. 10. Army Regulation 635-200 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. 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. 11. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. 12. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. BOARD DISCUSSION: After reviewing the application and all supporting the documents, to include the DoD guidance relating to liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the age of the applicant at the time of misconduct, the passage of time and the demonstration that the applicant has learned from the event which led to the discharge, the Board recommended upgrading his discharge to Under Honorable Conditions (General). 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 Under Honorable Conditions (General). 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 (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 under other than honorable conditions discharge 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) AR20160017054 0 3 1