ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 April 2019 DOCKET NUMBER: AR20160019222 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR2001056589 on 17 July 2001. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to a 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), ending period 21 August 1975 * Certificate of completion for treatment program FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2001056589 on 17 July 2001. 2. As a new argument, the applicant states it was unfair to him because he had good conduct. He was following orders from his sergeant to prevent trainees from killing the grass, by putting stakes and strings around the grass. When he was caught out of uniform, he went absent without leave (AWOL) to avoid getting an Article 15. He was also drinking and using drugs at the time of his discharge. 3. The applicant enlisted in the Regular Army on 12 July 1974. 4. The applicant was assigned to Headquarters and Headquarters Detachment, 5th Battalion, 2nd Basic Combat Training Brigade, Fort Leonard Wood, MO. He was reported as AWOL on or about 13 April 1975 and was dropped from the rolls on 12 May 1975. He was apprehended by civilian authorities and returned to military control on 23 May 1975, in Phoenix, AZ and was transferred to the Personnel Control Facility at Fort Ord, CA. 5. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) is not available for review in this case; however, documents contained within the record show the applicant's misconduct consisted of his AWOL period from on or about 13 April 1975 through on or about 23 May 1975. 6. The applicant’s discharge packet is not available for review. However, his record contains a DD Form 214 that shows he was discharged on 21 August 1975, under the provisions Army Regulation 635-200, chapter 10, for conduct triable by court-martial. His service was characterized as under other than honorable conditions. His DD Form 214 further shows in: * Item 18c (Record of Service – Total Active Service), he was credited with completing 1 year of creditable service; * Item 21 (Time Lost), he had 69 days of lost time; and * Item 27 (Remarks), the entry "29 days excess leave" and "40 Days Lost under 10 USC 972 from: 13 April 1975 thru 22 May 1975" 7. The applicant applied to the ABCMR on 13 May 2001, for an upgrade of his UOTHC discharge; however, the Board denied his request for an upgrade on 26 July 2001. 8. The Board should consider the applicant's statement and treatment program certificate of completion, in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the short term of military service completed prior to the AWOL, as well as the AWOL being ended by an apprehension by civilian authority, the Board found that the characterization of service received at the time of discharge was appropriate. 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 to amend decision of the ABCMR set forth in Docket Number AR2001056589, dated 17 July 2001. 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 states 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was 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) AR20160019222 2 1