ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  20 December 2019 DOCKET NUMBER:  AR20180009386 


APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable 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 18 May 2018, with attached, self-authored statement

.three character reference letters



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 states, in effect, that he would like his discharge upgraded to receivemedical assistance that veterans are entitled to.  He has bad knees from a fall andringing ears that hurt constantly.  He was in Germany for three years and did notreceive any pay from his leave.  When he was in the military, it was a very hard andracial time.  He had to put up with name calling, extra duty, and being a target.  He hasgrown and gotten older and feels that all the pain he’s in now was part of the training.He sometimes feels he is still in Germany with his bad dreams and nightmares ofseeing his friend commit suicide while they were on duty together.

3.The applicant enlisted in the Regular Army on 7 July 1977.

4.The applicant accepted non-judicial punishment, under the provisions of Article 15 ofthe Uniform Code of Military Justice (UCMJ), on the following dates:

.on 17 October 1978, for failing to obey a lawful order from a noncommissionedofficer, on or about 12 October 1978



.on 21 February 1979, for unlawfully striking another service member with hisfists, on or about 8 February 1979







5.Court-martial charges, dated 3 October 1978, were preferred against the applicantfor violations of the Uniform Code of Military Justice (UCMJ).  The relevant DD Form458 (Charge Sheet) is available (received 17 Dec 79) but is difficult to read.6.The applicant consulted with legal counsel on 19 December 1979.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 (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.He submitted a statement in his own behalf, wherein he stated, in effect, he requested to have a general discharge because he was pending a court-martial.  He stated that he only had 147 days left before his expiration term of service (ETS) and didn’t want to face federal conviction.  He would like a general discharge so he could have his benefits and money to help take care of his family. 

7.The separation authority approved the applicant's request for discharge on17 January 1980, under the provisions of Army Regulation 635-200, Chapter 10, in lieuof trial by court-martial, and further directed his reduction to private/E-1 and theissuance of a DD Form 794A (UOTHC Discharge Certificate).

8.The applicant underwent a mental status evaluation on 23 January 1980.  Therelevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had normalbehavior, was fully alert and oriented, and had clear thought process and normalthought content.  The evaluating physician determine he had the mental capacity tounderstand and participate in any administrative proceedings and he was cleared forany administrative action deemed appropriate by his Command.


9.The applicant was discharged on 31 January 1980, under the provisions of ArmyRegulation 635-200, Chapter 10, in lieu of trial by court-martial.  His DD Form 214confirms he was discharged in the lowest enlisted grade of private/E-1 and his servicewas characterized as UOTHC.

10.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,
Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial.

11.The applicant provides two character reference letters that attest to him being anactive member in the workforce, a person with good work ethics, confidence and isresponsible and trustworthy.  He is a hard worker and a caring and understandingperson when it comes to the world and life in general.

12.The Board should consider the applicant's statement, character references, andservice record in accordance with the published equity, injustice, or clemencydetermination guidance.

BOARD DISCUSSION: 

The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published DoD guidance for consideration of discharge upgrade requests.  The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the character reference letters he provided, the reason for his separation, and whether to apply clemency.  The Board found sufficient evidence of post-service mitigating factors, as described in the character reference letters he provided, to support a favorable clemency determination.  Based on a preponderance of evidence, the Board determined the applicant's character of service should be upgraded to general (under honorable conditions).  Because the basis for his reduction to the lowest enlisted pay grade was the characterization of his service as under other than honorable conditions, the record should be further corrected to show he held the rank/grade of private 2/E-2 at the time of his discharge from the Regular Army. 


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:XX :XX :XX GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 for the period ending 31 January 1980 to show his service was characterized as general (under honorable conditions) and that he held the rank/grade of private 2/E-2 with a date of rank of 23 August 1979. 


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 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 635-200, in effect at the time, set forth the basic authority for theseparation of enlisted personnel.

a.Paragraph 3-7a provides that an honorable discharge is a separation with honorand 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 Armyunder 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.When a Soldier is to be discharged with service characterized as under otherthan honorable conditions, the Soldier will be reduced to the lowest enlisted grade. 

d.Chapter 10 of that regulation provides, in pertinent part, that a member who hascommitted 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 toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemencygenerally refers to relief specifically granted from a criminal sentence.  Boards forCorrection of Military/Naval Records may grant clemency regardless of the court-martialforum.  However, the guidance applies to more than clemency from a sentencing in acourt-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 andprinciples 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 ofservice 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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