IN THE CASE OF:  BOARD DATE:  19 March 2020 DOCKET NUMBER:  AR20180005643 


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 7 March 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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant provides no evidence or argument except for his statement requestingan upgrade.

3.The applicant enlisted in the Regular Army on 20 February 1979.

4.The applicant accepted nonjudicial punishment (NJP), under the provisions ofArticle 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for theindicated offenses:

.on 14 November 1979, for being drunk on duty, on or about 9 November 1979

.on 28 February 1980, for two specifications of failure to go at the prescribed timeto his appointed place of duty, on or about 19 and 20 February 1980



5.A statement from the unit First Sergeant notes that following the imposition of thesecond NJP, the applicant was offered separation under Army Regulation 635-200(Personnel Separations – Enlisted Personnel), Chapter 5.  He refused this offer;consequently, separation under Chapter 13 was initiated by reason of misconduct.Once the implications of this type of discharge were known, he agreed to acceptseparation under Chapter 5.
6.The punishment for the applicant's second NJP included restriction to the companyarea.  Between the date of imposition of the restriction and 24 March 1980, theapplicant violated restriction on numerous occasions as noted in a series of statementsby his superior NCOs.  These violations resulted in additional restrictions andculminated in the applicant being directed to be escorted to the stockade for pretrialconfinement.  The applicant refused to be confined and assaulted the NCOs directed toescort him to the stockade.

7.Court-martial charges were preferred against the applicant on 14 April 1980 forviolations of the UCMJ.  The relevant DD Form 458 (Charge Sheet) shows he wascharged with communicating a threat towards a noncommissioned officer (NCO) andtwo charges of assault of an NCO, on or about 24 March 1980.

8.The applicant consulted with legal counsel on 21 April 1980.

a.He was advised of the basis for the contemplated trial by court-martial, themaximum 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 requesteddischarge under the provision of Army Regulation 635-200, 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 butdeclined to provide a statement. 

9.The separation authority approved the applicant's request for discharge on 25 April1980, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial bycourt-martial, and directed that the applicant be reduced to the lowest enlisted gradeand discharged UOTHC.

10.The applicant was discharged on 12 May 1980.  The DD Form 214 he was issuedshows he was discharged under the provisions of Army Regulation 635-200,Chapter 10, for the good of the service.  His DD Form 214 shows he was discharged inthe rank/grade of private/E-1 and his service was characterized as UOTHC.
11.The applicant was charged due to the commission of several offenses punishableunder the UCMJ with a punitive discharge.  Subsequent to being charged, he consultedwith counsel and requested discharge under the provisions of Army Regulation635-200, Chapter 10.  Such discharges are voluntary requests for discharge in lieu oftrial by court-martial.

12.The applicant's record documents no acts of valor, significant achievement, orservice warranting special recognition.

13.The Board may consider the applicant's petition and his service record in light of thepublished 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 applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity; the applicant had limited active service, no wartime service, no meritorious personal awards and insufficient evidence of mitigating circumstances for the misconduct. The Board found limited evidence of remorse or post-service honorable conduct that might have mitigated the discharge characterization that resulted from his serious misconduct and no additional evidence in support of a clemency determination.Based on a preponderance of evidence, the Board determined that the applicant’sdischarge characterization was not in error or unjust.BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :XX :XX 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 CHAIRPERSON


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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The regulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

3.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  It provides:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.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.  A characterization of under 
honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 
 
 c.  Chapter 10 provides 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. 
 
4.  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. 
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