ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 August 2019 DOCKET NUMBER: AR20180011444 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * nine character references 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 he was not compatible or combative, but was unsuitable for military life. His life is completely different and he regrets his actions when he was in the military service. 3. The applicant provided nine character references, his friends, co-workers and employers have known him an average of 10 years. He has been a great addition to their companies and saved them money. He is a hard worker and has integrity. Since the applicant went into business for himself, the companies he used to work for refer customers to him because of his abilities and work efforts. He is a great detail analysis and troubleshooter within their industry. He has always been professional, honest, and respectful in all business transactions. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 17 January 1980. He served in A Company, 1st Battalion, 63rd Armor, Fort Riley, KS beginning on 16 May 1980 as a 19F (Tank Driver). b. He accepted non-judicial punishment under the provisions of Article 15 on/for: * 18 March 1980, failed to go at the prescribed time to his place of duty on 9 March 1980, restriction and extra duty for 10 days, forfeiture of $50 per month for 1 month * 9 July 1980, wrongfully possessing marijuana, extra duty and restriction for 7 days, forfeiture of $104 per month for 1 month * 24 July 1980, failed to go at the prescribed time to his place of duty on 13 July 1980, restriction and extra duty for 14 days, forfeiture of $104 per month for 1 month (suspended $54 for 90 days) * 27 August 1980, failed to go at the prescribed time to his place of duty on 6 August 1980 and appear unshaven on 7 August 1980, extra duty for 21 days, restriction for 30 days and forfeiture of $100 per month for 2 months c. DA Form 4187 (Personnel Action) shows the following: * absent without leave (AWOL) from 16 September to 2 October 1980 * confined civil authorities from 3 October 1980 to 2 February 1981 * present for duty 3 February 1981 d. His DD Form 458 (Charge Sheet), dated 28 May 1981 shows he was charged with being AWOL from 3 March to 23 May 1981. e. On 28 May 1981, a mental status evaluation was conducted. The examiner determined he was psychiatrically cleared for any administrative action deemed appropriate by his command. f. Orders 149-22, dated 29 May 1981, published by Headquarters, U.S. Army Field Artillery Centerl, Fort Sill, OK, assigned him to the U.S. Army Personnel Control Facility, Fort Sill, OK. g. On 29 May 1981, he consulted with counsel and was advised of his rights. Following consultation with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. He did not submit a statement in his own behalf. He acknowledged: * he understood that if his discharge request was accepted, he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate (UOTHC) * he could be deprived of many or all Army benefits and could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws and may encounter substantial prejudice in civilian life * he understood that if he receives a discharge which is less than honorable, he may apply to the Army Discharge Review Board and/or the Army Board for the Correction of Military Records to upgrade his discharge; however, he realizes that consideration by either board does not imply that his characterization of service (discharge) would be upgraded h. On 8 June 1981, his immediate commander stated the request for separation is administratively correct under the provisions of chapter 10, AR 635-200 and recommended approval with an UOTHC discharge. i. On 17 June 1981, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, AR 635-200, for the good of the service with an UOTHC discharge certificate. j. On 29 June 1981, his DD Form 214 (Report of Separation from Active Duty) shows, the applicant was discharged from active duty. He was discharged under the provisions of chapter 10, AR 635-200, for conduct triable by court-martial, with an UOTHC discharge. He completed 10 months and 6 days of active service and he had 31 days of lost time. His DD Form 214 also shows he was awarded or authorized the Expert Marksmanship Qualification Badge (Pistol .45). 5. There is no evidence the applicant has applied to the ADRB for review of his discharge within that board's 15-year statute of limitations. 6. By regulation (AR 635-200), a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The issuance of a discharge under the provisions of chapter 10, AR 635-200, would have required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of a trial by court-martial. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions and letters of support were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. One Board member thought a possible outcome could be to grant relief based upon multiple letters of support. However, based upon the short term of honorable service completed prior to repeated incidents of serious misconduct, which included multiple lengthy AWOL offenses, the majority of the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a, states that an honorable discharge is a separation with honor. Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b, states that a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if such are merited by the member’s overall record during the current enlistment. 3. 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. 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 based on 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. 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) AR20180011444 4 1