ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20180013503 APPLICANT REQUESTS: His under other than honorable condition (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 received honorable discharges for his other enlistments, so he presumed his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending on 12 October 1973 should show he was honorably discharged. 3. The applicant's record reveals two prior periods of honorable service, from 9 October 1969 through 9 June 1970, and from 10 June 1970 through 14 March 1972. Each period is represented by a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that confirms his service during these periods was honorable. 4. The applicant reenlisted in the Regular Army on 15 March 1972. 5. Court-martial charges were preferred against the applicant on 18 January 1973 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with absented himself from his unit without authority, from on or about 2 January 1973 through on or about 17 January 1973, and with missing movement, on or about 8 January 1973. 6. The applicant consulted with counsel on 1 August 1973. 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 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 requested discharge 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 typed statement, wherein he noted: * he can't see the Army spending money training him and him not helping out and being a good Soldier because he wants out and he doesn't care how he does it. * he got divorced and the lawyer told him he couldn't have his children with him while in the Army. * he wanted out so he could go and take care of his children * he felt it would save the Army a bunch of money and time if they would let him out * he felt he could do better by himself if he was out of the Army 7. Consistent with the recommendations of the chain of command, the separation authority approved the applicant's request for discharge on 21 September 1973, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and directed that he be furnished a DD Form 258A (Undesirable Discharge Certificate). 8. The applicant was discharged on 12 October 1973, under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 10, for the good of the service. His DD Form 214 confirms he was issued an Undesirable Discharge Certificate and his service was characterized as under other than honorable conditions. 9. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting evidence, in addition to the administrative notes below the signature line, the Board found that full relief was warranted. 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 found the statement and evidence of honorable service, in the form of two prior honorable discharges and honorable service as a combat veteran in Vietnam, to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s honorable prior service and honorable wartime service have mitigated the misconduct resulting in the discharge characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the administrative notes below the signature line, 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 the applicant a DD Form 214 for the period ending “12 Oct 73” showing his characterization of service as “Honorable.” 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214 for the period ending 9 June 1970 is missing important entries or contains incorrect data. Therefore, issue a DD Form 215 (Correction to DD Form 214) that deletes the current entry in item 17c (Date of Entry), "09 Oct 70," replacing it with the entry "09 Oct 69." REFERENCES: 1. Title 10, U.S. Code, 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 UOTHC discharge 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) AR20180013503 4 1