BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20180016527 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certification Release of Discharge) * DD Form 215 (Correction to DD Form 214) * Personal Letter 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120007854 on 6 November 2012. 3. The applicant request that his discharge be upgraded in order to obtain Veteran Benefits. 4. On 30 April 1964 the applicant joined the Regular Army on a 3 year contract. He received a DD214 reflecting he served honorable. His record shows that he reenlisted on 30 April 1965 and he served in Korea and Vietnam respectfully. 5. On 4 November 1968, the applicant received an Article 15 for disobeying an order and failure to report. His punishment was reduction to specialist. A review of his records shows that he was Absent without leave (AWOL) on two occasions: * 21-28 April 1969 * 31 May through 17 June 1969 6. The applicant’s records are absent of a separation packet; however, his DD214 shows he was discharged for the good of the service in lieu of trial by court-martial on 24 July 1969 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10. 7. He completed 5 years, 1 month and 14 days of total active service and he had 51 days lost time due to being AWOL and received an undesirable discharge certificate. He is awarded the National Defense Service Medal. 8. The applicant submitted AR20120007854 on 6 November 2012 to ABCMR. The board determined that the evidence he provided was sufficient for partial relief. As a result, he applicant’s DD214, item 25, was amended showing he received his high school GED in 1965 and attended the 4th Army NCO Academy in 1966, but denied an upgrade to discharge. 9. 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. 10. The applicant provided a personal statement that spoke of his history and the process of getting to where he is in life. The applicant requests an upgrade to obtain VA benefits. His records show that he received an Article 15 for failure to obey an order and failure to report, and he was AWOL for 51 days. He was discharged for the good of the service in lieu of a trial by court-martial. 11. The Board does not base its decision on the request for VA benefits; however, 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: 1. 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 service in Korea and Vietnam, his previous honorable service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found the applicant’s personal statement in support of clemency, but did not find evidence of other post-service achievements or letters of reference. After considering the applicant’s record and nature of the misconduct, the Board determined that clemency was warranted and that his character of service should be upgraded. 2. After reviewing the application and all supporting documents, the Board determined that relief was warranted. BOARD VOTE: : GRANT FULL RELIEF : GRANT PARTIAL RELIEF X: X: X: : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 24 July 1969 to show in item 13a. (Character of Service) – General, under honorable conditions”. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to 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): 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 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 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade. Board action was not required for this reduction. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. 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. 4. 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. ABCMR Record of Proceedings (cont) AR20180016527 4 ABCMR Record of Proceedings (cont) AR20180016527 1