BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20170013817 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) character of service to be upgraded. 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) for period ending 1 September 1978 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 would like his character of service changed in order for him to receive recognition when he passes away. 3. On 7 June 1977, at the age of 20 years old, the applicant enlisted in the Regular Army for a term of 4 years. 4. He accepted nonjudicial punishment (NJP) on 7 July 1977 for failing to go at the time prescribed to his appointed place of duty 5. On 1 March 1978, the applicant went absent without leave (AWOL) and on 3 March 1978, he surrendered to his unit. On same date, he accepted NJP for failing to go at the time prescribed to his appointed place of duty. 6. On 6 July 1978, court-martial charges were preferred against the applicant for being AWOL from 2 April 1978 and remaining absent until 25 June 1978. 7. On 7 July 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 (AR) 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 AR 635-200, chapter 10. The applicant elected to submit a statement on his own behalf. He stated he was 21 years old and had a 12th grade level education. He joined the Army because he had some trouble with the police in his home town. He has a job at [Wellies] Manufacturing and would like to keep it. He requested the military occupational specialty 13B (Cannon Crewmember) at Fort Lewis, WA. If at all possible, he would like to be separated under Chapter 10. 8. On the same date the applicant was placed on excess leave while his request for Chapter 10 continued processing. 9. In connection with his administrative separation, the applicant underwent a medical examination, which cleared him for separation. His record is void of a mental status evaluation. 10. The applicant's chain of command recommended approval of his request and on 28 July 1978, the appropriate separation authority approved the applicant's request directing the applicant be reduced to private (PVT)/E-1 and he be issued a discharge under other than honorable conditions. 11. On 1 September 1978, he was discharged accordingly. His service was characterized as UOTHC. He completed 1 year of total active service with 86 days of lost time. His DD Form 214 shows he was awarded or authorized the M-16 Rifle Marksman Marksmanship Qualification Badge and Hand Grenade Expert Qualification Badge 12. The applicant states he would like his character of service upgraded in order for him to receive recognition when he passes away. His record shows he enlisted at the age of 20 years old, he accepted two NJPs, and he had 86 days lost due to AWOL [It appears that he was not charged for lost days due to confinement at the PCF from 25 June 1978 to 7 July 1978, the time he was placed on excess leave.] The applicant was confined at the Personnel Control Facility from 25 June 1978 to 7 July 1978 (12 days) and was then placed on excess leave. He served 1 year of his 4 years contractual obligation. 13. AR 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. 14. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to 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 and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. An honorable characterization is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. 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. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) 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. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013817 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170013817 5 ABCMR Record of Proceedings (cont) AR20170013817 4