BOARD DATE: 7 August 2020 DOCKET NUMBER: AR20180008050 APPLICANT REQUESTS: The applicant requests an upgrade of his general under honorable conditions discharge to an honorable discharge; however, his record shows he received an under other than honorable conditions (UOTHC) discharge. Additionally he requests personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Centralized Intake Coversheet * VA Form 21-4138 (VA Statement in Support in Claim), dated 13 April 2018 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 it has been over 35 years that he has lived a life of hardship due to the lack of observation of the proper authorities. When he was at Fort Ord, CA, he was advised that he was going to receive the proper treatment and attention to the injuries he sustained while he was stationed at Elmendorf Air Force Base at Anchorage, AK. 3. On 31 October 1975, the applicant enlisted in the Regular Army for a term of 4 years, at the age of 17 years old. 4. After completing initial entry training, on 13 May 1976, he was assigned to Fort Hood, TX. 5. On 12 September 1977, he went absent without leave (AWOL) and returned by surrendering to his unit on 15 September 1977. 6. He accepted nonjudicial punishment (NJP) on: * 20 September 1977 for being AWOL from 12 September 1977 to 15 September 1977 * 18 May 1977 for failing to go at the time prescribed to his appointed place of duty on 15 May 1978 7. On 23 February 1978, he was reassigned to Fort Richardson, AK. He accepted NJP on: * 6 October 1978 for failing to go at the time prescribed to his appointed place of duty on 5 October 1978 * 9 February 1979 for wrongfully sleeping on his post while posted as a sentinel on 4 February 1979; a portion of his punishment, forfeiture of $40.00 per month for two months was mitigated to one month 8. On 6 February 1979, his immediate commander initiated a bar to reenlistment against him for receiving two NJPs. He stated the applicant's NJP and counseling record (unavailable) coupled with many undesirable traits caused him to be unworthy of reenlistment. He was frequently late for work, his appearance was substandard, he took too much time in the performance of this duties, shirked, and was recalcitrant. The applicant was disinterested in his job performance and totally apathetic. It would be to the benefit of the unit and the U.S. Army to bar him from reenlistment. 9. A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 28 February 1979, shows favorable actions were suspended because he was pending separation under the provisions of Army Regulation (AR) 635-200, Chapter 14 (Separation for Misconduct). 10. On 7 April 1979, the applicant went AWOL and on 6 May 1979 he was dropped from the unit rolls. On 29 October 1979, he surrendered to military authorities at AWOL Apprehension, Fort Ord, CA and assigned to the U.S. Army Personnel Control Facility (USAPCF), Fort Ord, CA. 11. On 29 October 1979, charges were preferred against the applicant for one charge of Article 86, Uniform Code of Military Justice (UCMJ) –– Absence Without Leave, and one specification of being AWOL from 7 April 1979 to and remaining absent until 29 October 1979. 12. Defense Counsel?s letter to applicant, dated 31 October 1979, shows: a. Counsel advised the applicant of his rights in regards to submitting a request for discharge for the good of the service. He stated, in pertinent part, if his request was approved, he would normally be discharged UOTHC. As a result, he would be deprived of many or all Army benefits, he would be ineligible for many or all benefits administered by the Veterans Administration (VA), and he may be deprived of his rights and benefits as a veteran under both Federal and State law. Counsel warned him against widespread rumors that a discharge UOTHC can easily be changed to an honorable discharge after he was released from service or that after a certain time it automatically becomes honorable. It was totally false. b. He further advised the applicant only two agencies can change the type of discharge and then only because of factual error or because of an injustice, the Army Discharge Review Board and the Army Board for Correction of Military Records. Counsel included statistics of each Board's approval rate at the time and further advised the applicant, in all likelihood, this discharge would remain with him for the rest of his life. c. The applicant endorsed the letter indicating that he acknowledged receipt of counsel advice concerning discharge for the good of the service and a list of Federal Veteran?s Benefits that would be affected by issuance of a discharge under other than honorable conditions. 13. 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, to include understanding the possible effects of a UOTHC discharge, as a result of which he would be deprived of all benefits administered by the VA and may be deprived of his rights and benefits as a veteran under both Federal and State law. The applicant elected not to submit a statement on his own behalf. a. His unit commander endorsed his request to be discharged under other than honorable and provided the applicant went AWOL because he was experiencing conflicts with the chain of command in his old unit. He desired discharge to enable him to pursue a civilian career. The applicant stated that if he returned to duty he would go AWOL. The commander stated the applicant was medically cleared for separation on 1 November 1989. He also indicated that the Report of Medical Examination was enclosed. The record is void of both a medical examination and mental status evaluation. b. The applicant's chain of command recommended approval of his request, and on 13 November 1979, the appropriate separation authority approved the applicant's request directing that he be reduced to lowest enlisted grade and he be issued a discharge under other than honorable conditions. c. On 30 November 1979, he was discharged accordingly. His service was characterized as UOTHC. He completed 3 years, 6 months, and 2 days of his 4-year contractual obligation. His DD Form 214 shows he was awarded or authorized a Rifle Marksman Marksmanship Qualification Badge and he had 208 days of lost time. 14. An Army Review Boards Agency Letter, dated 2 July 2019, shows the Case Management Division (CMD) informed the applicant for the ABCMR to consider his application he must provide a copy of the medical documents to support his medical injuries sustained while on active duty and what offices he may contact for assistance. The office placed his case on hold until 2 August 2019 to give the applicant the opportunity to respond and he was informed if the office did not hear from him within the specified time, his case would be forwarded to the Board with the documents he provided with his initial application. The applicant did not respond. 15. The applicant provides VA Centralized Intake Coversheet and VA Statement in Support in Claim, dated 13 April 2018, which show the applicant requested a complete copy of his claim file. 16. Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 17. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation. The ARBA Medical Advisor made the following findings and recommendations: The applicant is applying to the ABCMR requesting an upgrade of his 30 November 1979 discharge characterized as under other than honorable conditions. He claims that he was harassed by two individuals because “she (my wife) was white and I am Mexican. We received threats and much more. I know that I served diligently and both me and my wife served the 4 yrs. of our enlistment, it was only interrupted by an act with malicious intent.” He goes on to state “When we were sent to Ft. Ord, CA, it was under the advice that I was going to receive the proper treatment and attention to the injuries I had sustained while I was stationed at Elmendorf Air Force Base at Anchorage, Alaska.” There are no medical documents with the supporting documentation, and the “injuries” were not identified. There was no evidence found that he was sent to Fort Ord. The applicant surrendered to military authorities at Fort Ord on 29 October 1979, and was discharged the following month. There is no evidence the applicant had any medical condition which was a contributing factor to his poor conduct. 18. 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: The Board carefully considered the applicant's request, supporting documents, 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 review and conclusions of the ARBA Medical Advisor based on available medical records. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the ARBA Medical Advisor regarding his misconduct not being mitigated by any medical conditions. 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. 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. 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. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member?s current enlistment of current period of 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 under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) 1984 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. e. A medical examination under the provisions of chapter 10 was not required, but may be requested by the member in writing. If requested, a mental status evaluation was also required. If requested; a copy of the medical examination and mental status evaluation was to be included in the separation packet proceedings. f. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. An under other than honorable conditions discharge was normally considered appropriate. 4. Army Regulation 40-501 (Standards of Medical Fitness) states, in pertinent part, if a member pending separation may request a medical examination in writing. If a medical examination is requested by the member, then a mental status evaluation is required. 5. Per Manual for Courts-Martial, 1969 (Revised Edition), Article 86, UCMJ –– absence without leave for more than 30 days, included a punitive discharge. 6. 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) AR20180008050 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180008050 8 ABCMR Record of Proceedings (cont) AR20180008050 6