ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 April 2019 DOCKET NUMBER: AR20180001226 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certification Release of Discharge) * Letters of Support 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR199022694, AR2004106751, AR20060008250, AR20070000029, AR20070017561, and AR20110004392 between 1999 through 2011. 3. The applicant states that he went home for his mother’s funeral and did not return to service because he had to take care of his 5 year old sister. He provided letters of support that spoke of his reliability and dependability as well as his spiritual connection to church. 4. On 23 June 1980 he enlisted in the Army Reserve for a period of 6 years. He was ordered to active duty on 3 December 1980 to attend Basic Training (BCT) and Advanced Individual Training (AIT) at. 5. The applicant’s records are absent of a separation packet; however, the applicant records shows: a. On 20 March 1981 the applicant’s duty status was changed from Present for Duty (PDY) to absent without leave (AWOL). b. On 19 April 1981 his duty status was changed from AWOL to Dropped From Rolls (DFR). c. On 4 December 1981, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, the applicant was discharged, and received an UOTHC certificate. His DD Form 214 reflects 1 month and 1 day of net active service and 8 months and 28 days of prior active service. He was awarded the marksmanship badge for the M-16 rifle. Of note the applicant had 43 days of excess leave and was AWOL from 20 March 1981 through 13 October 1981. 6. The applicant submitted 5 previous cases to ABCMR with the most recent being 18 August 2011. The board stated that the cases had been previously denied or administratively closed; therefore, there are no regulatory provisions that provide for further reconsideration in the applicant’s case. 7. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request 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. 8. The applicant states that he went home for his mother’s funeral and did not return to service because he had to take care of his 5 year old sister. He was AWOL from 20 March through 13 October 1981. As a result, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, and received an UOTHC certificate. 10. 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 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. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. There was no evidence of a Red Cross message nor evidence that shows his unit was informed of his mother’s death, and later denied him the opportunity to take appropriate courses of actions. The applicant must be informed the Board requires new evidence not previously provided in order to reconsider his application. 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 the decision of the ABCMR set forth in Docket Numbers AR199022694, AR2004106751, AR20060008250, AR20070000029, AR20070017561, and AR20110004392 between 1999 through 2011. 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 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade. Board action was not required for this reduction. 3. 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. 4. 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) AR20180001226 5 1