IN THE CASE OF: BOARD DATE: 4 August 2020 DOCKET NUMBER: AR20180008534 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20080017023 on 23 December 2008. Specifically, he 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 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 6 June 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 10 February 1981 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080017023 on 23 December 2008. 2. The applicant states he fractured his spine while he was in the Army. Although he receives Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI), he wishes to apply for disability from the Department of Veterans Affairs (VA). 3. The applicant enlisted in the Michigan Army National Guard (MIARNG) on 21 February 1978. Orders 126-4, issued by the MIARNG on 1 June 1979, indicate he was discharged from the ARNG, issued a National Guard Bureau (NGB) Form 56a (General Discharge Certificate), and was reassigned to the U.S. Army Reserve (USAR) on 1 July 1979. He entered active duty on 2 July 1979. 4. The applicant was counseled on the requirements for completion of a medical examination prior to separation on 3 November 1980. He elected not to undergo a medical examination. 5. Court-martial charges were preferred against the applicant on 4 November 1980, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his organization, without authority (AWOL), from on or about 2 November 1979 through on or about 28 October 1980. 6. The applicant consulted with legal counsel on 6 November 1980. 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 a UOTHC 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 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 Department of Veterans Affairs (VA), 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 on his behalf. In a provided statement, he noted that he was 21 years of age and had a tenth grade education level. He joined the Army to learn a skill and serve his country. The reason he went AWOL is because he wanted out of the Army, his family was having problems, and he wanted to be there. 7. The separation authority approved the applicant's request for discharge on 2 December 1980, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service and directed that he be reduced to the lowest enlisted grade and discharged UOTHC. 8. The applicant was discharged on 10 February 1981, under the provisions of Army Regulation 635-200, Chapter 10, by reason of administrative discharge conduct triable by court-martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 9. 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. 10. The applicant petitioned the ABCMR for an upgraded service characterization. The ABCMR considered his request on 23 December 2008, determined he was properly discharged, and denied his request for relief. 11. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents provided and the limited information in the VA's Joint Legacy Viewer (JLV). Due to the period of time of the applicant's service there are no records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), or Health Artifacts Image Management Solutions (HAIMS). The following findings and recommendations are made: This is an appeal of a previous ABCMR request to upgrade the applicant’s discharge from UOTHC to a General discharge UHC. The applicant was denied relief in 2008. A review of the ABCMR application and documents submitted by the applicant indicate that no new evidence or information is available since the prior determination. The applicant asserts that he fractured his spine while in the service, however there are no medical records available to support this assertion. Furthermore, an injury incurred while in the Army would not attribute to the applicant going AWOL. Therefore, based on the available information, the Agency Medical Advisor finds that there is insufficient evidence to warrant an upgrade in the applicant’s discharge for medical reasons. 12. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board found insufficient evidence to grant relief and amend the decision of the ABCMR set forth in Docket Number AR20080017023 on 23 December 2008. 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 did not find sufficient evidence to grant relief. The Board agreed with the medical advisory that there is insufficient evidence to warrant an upgrade in the applicant’s discharge for medical reasons and that no new evidence or information is available since the prior determination. The Board found no other grounds for clemency in the case. Therefore, based on the available information, the Board agreed that the applicant’s discharge characterization is appropriate for the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 Number AR20080017023 on 23 December 2008. 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, U.S. Code (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) AR20180008534 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180008534 5 ABCMR Record of Proceedings (cont) AR20180008534 4