ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 April 2019 DOCKET NUMBER: AR20160019125 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) 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 his record is unjust because his supervisor (sergeant first class) was a bigoted man. His grandmother was the woman that raised him. When his grandmother was about to die he requested emergency leave to attend her final days and funeral. He was granted a 3 day pass, but was denied an extension. Because his grandmother was in essence his mother, he had to make a decision to stay with her and the family. He stayed with his family for 90 days. 3. On 18 October 1972, the applicant enlisted in the Regular Army. 4. He received non-judicial punishment during the period of July 1973 to August 1974 on 4 separate occasions for: * being absent without leave (AWOL) for 4 days * being AWOL for 3 days * failing to be at his appointed place of duty on 2 occasions 5. On 12 January 1975, the applicant was honorably discharged for immediate reenlist. He had 7 days of lost time. 6. On 13 January 1975, after being granted a waiver for lost time, the applicant reenlisted in the Regular Army. 7. On 1 October 1975, he was convicted by a court-martial. He pled guilty and was found guilty of being AWOL from 15 July to 3 September 1975. 8. He received non-judicial punishment on 2 occasions for failing to be at his appointed place of duty and being AWOL from 29 September to 24 November 1976. 9. On 10 July 1979, court-martial charges were preferred against the applicant for being AWOL from 7 April 1977 to 6 July 1979. a. The applicant voluntarily requested 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. b. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights, and the implications attached to voluntarily requesting discharge under the provision of chapter 10, AR 635-200. He signed a request for discharge for the Good of the Service and indicated he would not submit statements in his own behalf. c. The applicant was medically cleared for administrative separation. d. His chain of command recommended approval of his request. The appropriate separation authority approved his request and directed the issuance of an Other Than Honorable Conditions Discharge Certificate. 10. On 3 August 1979, the applicant was discharged accordingly. He completed 1 year, 7 months, and 24 days of net active service this period. He had more than 703 days of lost time and was awarded or authorized the: * National Defense Service Medal * Parachutist Badge * Expert Qualification Badge with Rifle Bar (M-16) 11. The applicant’s record shows he went AWOL on multiple occasions for more than 703 days. His first AWOL offense was approximately 9 months from the date of his enlistment. His record is void of evidence showing he was awarded any personal decorations and his available records do not identify special circumstances. 12. Army Regulation 635-200, chapter 10 states 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. 13. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The applicant’s record shows he repeatedly went AWOL throughout his career, not one specific occurrence, before his command decided to refer court-martial charges. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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. /NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019125 0 4 1