ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20180015791 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 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), with self-authored statement 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 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, a. Prior to finding out his mother had cancer, his military service was exemplary. He was recommended for reenlistment and to attend the Primary Noncommissioned Officers Course (PNCOC). He was a crew chief and always recognized for his work ethic. He was allowed to live off post, a privilege only Soldiers with no disciplinary issues received. After finding out his mother had cancer, he was distraught. His father had passed from a violent assault and his younger sisters would not have a caretaker once his mother passed. He felt obligated to care for his family but being stationed overseas would make that impossible. b. He was a good Soldier until his mother’s illness. He admitted his failures and acknowledged that his behavior was not appropriate; however, he thought a general discharge ignored his service until the point he was separated. He was young and did not fully understand the consequences of his decision to accept discharge in lieu of trial by court martial. Had he known, he would have accepted the general discharge and would have went home to care for his family. 3. The applicant enlisted in the Regular Army on 26 November 1976. 4. Following the completion of his initial entry training, the applicant was placed on assignment instructions for duty in the Federal Republic of Germany. His records show he did not report for his flight and was reported absent without leave (AWOL) on or about 22 March 1977. 5. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: a. On 31 May 1977, for without authority, absenting himself from his organization from on or about 22 March 1977 through on or about 20 May 1977. b. On 21 July 1978, for failing to go at the prescribed time to his appointed place of duty, on or about 10 July 1978. c. On 22 November 1978, for failing to go at the prescribed time to his appointed place of duty, on or about 22 November 1978. d. On 2 January 1979, for wrongfully appropriating government property [M151A2 1/4 Ton Jeep], on or about 4 December 1978. e. On 21 May 1979, for failing to go at the prescribed time to his appointed place of duty, for being intoxicated on duty, and for willfully disobeying a lawful order, on or about 1 May 1979. 6. Court-martial charges were preferred against the applicant on 4 September 1979, for violations of the UCMJ. The relevant DD form 458 (Charge Sheet) shows he was charge with: * failing to go at the prescribed time to his appointed place of duty, on or about 2 August 1979 * willfully disobeying a lawful order, on or about 5 August 1979 * willfully disobeying a lawful order, on or about 6 August 1979 * absenting himself from his unit, from on or about 10 August 1979 through on or about 12 August 1979 * failing to go to at the prescribed time to his appointed place of duty, on or about 16 August 1979 * absenting himself from his unit, from on or about 20 August 1979 through on or about 29 August 1979 * absenting himself from his unit, from on or about 31 August 1979 through on or about 11 September 1979 * willfully disobeying a lawful order, on or about 30 August 1979 7. The applicant consulted with legal counsel on 17 September 1979. 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 bad conduct 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 further advised that there is no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board for Correction of Military Records if he wished for a review of his discharge. He realized that the act of consideration by either board does not imply that his discharge would be upgraded. d. He was advised he could submit any statements he desired in his own behalf. In an attached statement, he noted that he had tried to keep in a good military state but sometimes it could be a lot harder than some people could believe. In the middle of August, he received a letter from his mother, stating she needed him home because she was ill with cancer. He didn’t have a father and was the only son in the family. So he did the best thing he thought he could do, to try to get home. He asked his commander and was told no because he was under judicial punishment. So he tried to get home on his own. 8. The separation authority approved the applicant's request for discharge on 15 October 1979, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a UOTHC Discharge Certificate. 9. The applicant was discharged on 26 October 1979, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows his service was characterized as UOTHC, and further shows in: * Item 12c (Net Active Service This Period), he was credited with completing 2 years, 8 months, and 11 days of net creditable active service * Item 28 (Narrative Reason for Separation), the entry "ADMIN DISCHARGE CONDUCT TRIABLE BY COURT-MARTIAL" 10. 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. 11. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, 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 : : : 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. 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): Not Applicable 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018, 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 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) AR20180015791 4 1