BOARD DATE: 28 August 2020 DOCKET NUMBER: AR20180005033 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable 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), dated 8 September 2017, with personal statement * Memorandum from the National Personnel Records Center (NPRC), St. Louis, Missouri, dated 3 February 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 told his discharge would be an honorable discharge after his explanation. He was and still is a good Soldier, who achieved medals during his time in service. He does not regret a thing and he is still ready for war and ready to serve his country. 3. The applicant provides a self-authored statement, dated 18 September 2017, in which he states, in effect: a. He is currently serving a 30 year sentence for burglary at Riverbend Correctional Facility, Milledgeville, Georgia. He has had problems adjusting to a regular life and has been in and out of prison since leaving the Army. His stress led him to alcohol, which led him to crime, over and over. He has not been able to receive any help for his stressing other than his Christianity now. He believes he will be paroled soon and wants to be able to receive some veteran help. He never received the discharge that was explained to him nor has he applied for any type of veteran assistance, to include the Montgomery G.I. Bill or anything since leaving the military. b. He is 50 years old, still in great shape for combat and ready to go if needed. He has a wife and children that are willing to accept him, but he desperately needs help adjusting. His stress sometimes hinders him from keeping employment and leads him to drinking. He would like his request for an upgrade to be considered. It has been 30 years and this is the first time he's tried to get this situation straight so he can be the great Soldier he is. 4. The applicant enlisted in the Regular Army on 3 March 1987. 5. Court-martial charges were preferred against the applicant on 20 April 1988, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about 23 November 1987 through on or about 13 April 1988. 6. The applicant's record contains a Fort Dix Confinement Facility (FDCF) Form 691A (Personnel Control Facility Interview Sheet), dated 14 April 1988, which notes the applicant stated he went AWOL due to family problems at home and he talked with the Army chaplain and his captain prior to going AWOL. 7. The applicant made an election on a Medical Examination for Separation Statement of Options, on 14 April 1988, wherein he declined to have a separation medical examination. 8. The applicant consulted with counsel on 20 April 1988. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. His election shows he declined to submit a statement in his own behalf. 9. The separation authority approved the applicant's request for discharge on 6 May 1988, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and further directed his reduction to private/E-1 and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 10. The applicant was discharged on 8 November 1984, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 11. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 12. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his service characterization. The ADRB considered his request on 20 March 1995, determined he was properly discharged, and denied his request for relief. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 14. Based on the applicant's contention the Army Review Board Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The applicant is applying to the ABCMR requesting a discharge upgrade stating stress and family problems led to the misconduct which resulted in his discharge. The Agency psychiatrist was asked to review this request. Documentation reviewed includes the applicant’s completed DD Form 149 and supporting documentation, the available military personnel records and the VA electronic medical record (Joint Legacy Viewer- JLV). No hard copy military medical records or civilian medical documentation was provided for review. Review of the VA electronic medical record (JLV) indicates that the applicant is not registered with the VA. 2. Review of the applicant’s personnel records indicates that he enlisted in the Regular Army on 3 March 1987. On 20 April 1988, court martial charges were preferred against him for being AWOL from 23 November 1987 through 13 April 1988. The service record documents that the applicant stated he went AWOL because of family problems at home and he talked with his captain and chaplain prior to going AWOL. On 31 May 1988, the applicant was discharged under other than honorable conditions in accordance with AR 635-200, Chapter 10, for the good of the service, in lieu of trial by court martial. 3. After reviewing the available information, it is the opinion of the Agency psychiatrist that there is insufficient medical evidence to make any decision regarding medical mitigation at this time. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, a medical review, and published Department of Defense guidance for liberal 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 reason for his separation. The Board considered the applicant's claim to have been under stress, and the review and conclusions of the medical advising official. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding there being insufficient medical evidence indicating there were any mitigating medical conditions at the time of his misconduct. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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. X____________________ 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 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. 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 //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005033 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180005033 6 ABCMR Record of Proceedings (cont) AR20180005033 5