IN THE CASE OF: BOARD DATE: 18 April 2019 DOCKET NUMBER: AR20180016043 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) 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 joined the Army one month after his mother passed away. He was a confused and crushed 17 year old boy, running from life. Years later he realized his mistake. He ask for mercy as he is currently a proud American who would do anything to go back and proudly serve his country. 3. The applicant’s spouse states they have been together over forty years plus and how he’s always spoken of how he regretted his decisions and wished he had fulfilled his years in service to his country. She states he is a patriot and we have always voted and supported the president and military. They proudly fly their flag and pray for those who serve, past, present, and future. 4. On 30 March 1976 the applicant enlisted in the Regular Army at the age of 17. 5. On 20 July 1976 it was documented the applicant went absent without leave (AWOL) on 11 April 1976, dropped from the rolls and subsequently returned to military control 6 July 1976. 6. On 13 July 1976 he was assigned to the United States Army Personnel Control Facility in Fort Sill. 7. On 16 July 1976 he was charged for being AWOL from on or about 11 April 1976 to on or about 1 July 1976. 8. On 16 July 1976, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10.  He signed a request for discharge for the Good of the Service. a. The applicant's chain of command recommended approval of his request and the appropriate separation authority approved the applicant's request.  b. The appropriate authority approved the applicant’s request for the good of the service, directing the applicant will be furnished a undesirable discharge certificate, and be processed for separation not later than 4 August 1976. 9. His record is void of a separation packet; however, his DD Form 214 shows: * Separation Date: 4 August 1976 * Net Active Service: 1 month and 17 days * Authority and Reason: Chapter 10, AR 635-200 * Type of Separation: Discharge (FORMAT 500) * Character of Service: Under Other Than Honorable Conditions * Lost Time: Approximately 80 days. 10. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial.  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. 11. Army Regulation 635-200 does not provide for a type of separation “Discharge (FORMAT 500). 12. 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. 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): In the event the Board denies the applicant’s request for relief and base off his records his DD Form 214 should be corrected by amending: * Type of Separation to read: Chapter 10 In Lieu of Trial by Court Martial * Authority and Reason: AR 635-200, Chapter 10 * SPD: KFS 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 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states:          a.  A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service.  The request could be submitted at any time after the charges had been preferred.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate.      b.  An honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel.        c.  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.   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.          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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016043 3 ABCMR Record of Proceedings (cont) AR20180016043 1