ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 May 2019 DOCKET NUMBER: AR20180009153 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 (Armed Forces Report of Discharge or Transfer) * Letter 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. The applicant states that he would like his discharge upgraded. He feels that the discharge was due to his girlfriend getting pregnant and a verbal altercation with an officer while he was on leave. 3. On 30 September 1965, the applicant enlisted in the regular army for 3 years. A review of his personnel qualification record shows he received conduct ratings of excellence from while in basic training, advanced individual training and airborne school. He started receiving conduct ratings of unsatisfactory for being AWOL upon reporting to his first duty assignment with Company C, 2nd Battalion (Airborne) 505th Infantry, Fort Bragg, NC. 4. On 6 February 1968 the applicant’s immediate commander notified him of his intent to separate him under the provisions of Army Regulation (AR) 635-212 for unfitness and advised him of his available rights. After having been advised by counsel the applicant acknowledged his rights and waived consideration of the case by a board of officers, appearance before a board of officers, representation by legal counsel and indicated he would not submit personal statements in his behalf. 1. 5. The immediate commander based his request for separation centered on the following: * Frequent incidents of a discreditable nature with military authorities * 5 charges of Absent Without Leave (AWOL) * 3 convictions by Court-Martial 6. On 29 March 1968, the applicant's appropriate authority approved the separation, waived rehabilitation and directed the applicant be issued a UOTHC certificate. 7. He was discharge accordingly, his service was characterized UOTHC. His DD Form 214 shows he completed 1 year, 9 months, and 7 days total active service of his 3 year contract and awarded or authorized the Parachutist Badge. Of note, the applicant had 203 lost days due to AWOL status and confinement. 8. The regulation in effect during this time period, AR 635-212, Discharge for Unfitness and Unsuitability establishes policies, procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. It states: a. An individual separated by reasons of unfitness will be furnished an undesirable discharge certificate except that an honorable or general discharge certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. b. An individual separated by reason of unsuitability will be furnished an honorable or general discharge certificate as warranted by his military record. 9. On 27 September 1977, the applicant submitted an application to the Army Discharge Review Board to request that his discharge be reviewed. The board voted to deny his relief. 10. The applicant provided a letter of support it states, in pertinent part, the applicant is suffering from dementia, and some days are good and some are bad. The writer of the letter is serving as the applicant’s “Third Party Authorizer” in support of the applicant to obtain his VA pension. The writer states that the applicant could utilize this upgrade as good news and to receive his benefits. 11. 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. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the relatively short term of service completed prior to multiple UCMJ offenses, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/16/2019 X CHAIRPERSON Signed by: 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. The regulation in effect during this time period, AR 635-212, Discharge for Unfitness and Unsuitability states: a. This regulation establishes policies, procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. b. An individual separated by reasons of unfitness will be furnished an undesirable discharge certificate except that an honorable or general discharge certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. c. An individual separated by reason of unsuitability will be furnished an honorable or general discharge certificate as warranted by his military record. 3. 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. 4. 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. a. 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. 5. 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.