ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  25 February 2019

	DOCKET NUMBER:  AR20170000336


APPLICANT REQUESTS:  The applicant requests his under other than honorable conditions (UOTHC) discharge under other than honorable conditions be upgraded to under honorable conditions (general).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Applicant Statement

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 young when he entered the military.  His personal problems stemmed from his daughters mother threatening him to take their daughter away so he wouldn’t be able to see her.  He became emotionally unstable which caused him not to give 100%.  He went AWOL to find his daughter which became his focus.  He regrets not being able to handle the situation; it’s not a day that goes by that he doesn’t think about how messed up his state of mind was and how it got in the way of his service.  Since his discharge, he’s been a law-abiding citizen.  The applicant is hoping and praying that his discharge status will be upgraded so that he will have a chance to help his grandchildren.  

3.  On 21 July 1975, the applicant enlisted in the Regular Army at the age of 21.

4.  On 2 February 1977, he received non-judicial punishment (NJP) for being absent without leave (AWOL) from 29 November 1976 to 19 January 1977.  

5.  On 24 January 1978, he was charged for being AWOL twice from 13 July 1977 to on 11 August 1977 and 6 September 1977 to 20 January 1978.  

6.  On 25 January 1978, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  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 provision of Army Regulation 635-200, chapter 10.  He signed a request for discharge for the Good of the Service and indicated he would submit statements in his own behalf.  The applicant’s record show’s he wrote statement on his behalf.

   a.  The applicant's chain of command recommended approval of his request and the appropriate separation authority approved the applicant's request.  
   
     b.  The appropriate authority approved the applicant’s request for the good of the service, directing the applicant be reduced to the lowest grade possible and that his service be characterized as UOTHC.

7.  On 14 February 1978, he was discharged accordingly.  His DD Form 214 shows he completed 1 year, 10 months and 2 days of total active service, has lost time of approximately 281 days.

8.  The applicant applied to the ADRB to upgrade his discharge.  On 6 June 1980, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

9.  The applicant wishes he had a second chance to prove his worth to the Army and country but the wear and tear of life has crept up on him.  It was not his intention to go AWOL; he was young and emotionally unstable.  His records show he enlisted at the age of just turning 21 and went AWOL the first time within 6 months of entering active duty subsequently going two other times.  In the separation process the applicant did write a statement advising of his special circumstances, stating in effect, he was a good Soldier and performed his duties well prior to going AWOL; however, he was experiencing a hardship due to his wife spending all their money and giving away everything he earned to keep his family going. 

10.  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.

11.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD 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 Board agreed the discharge characterization was warranted based upon 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.


ABCMR Record of Proceedings (cont)	 AR20170000336
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