BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20190002057 APPLICANT REQUESTS: The applicant requests in effect, 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 (Armed Forces of the United States Report of Transfer or Discharge), dated 12 April 1970 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 had many problems going on at home at the time. He requested to be transferred to be closer to home which fell on deaf ears. He’s had two honorable discharges and the last one was undesirable, chapter 10. He knows and understands he’s done things the wrong way sometimes but did have 3 good years. 3. On 15 December 1970, the applicant reenlisted in the Regular Army for six years. 4. On 10 November 1970, he received non-judicial punishment (NJP) for failing to be at work formation at 0700 on 6 November 1970. He also left his appointed place of duty at 0810 on 6 November 1970. 5. On 29 December 1971, while in pre-trial confinement, he was charged for being absent without leave (AWOL) from on or about 21 July 1971 to on or about 15 December 1971. 6. 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 on 23 December 1971. He signed a request for discharge for the Good of the Service and indicated he would write a statement on his own behalf which is not enclosed. 7. The applicant’s chain of command recommended approval of his request and the appropriate separation authority approved the applicant’s request and directed he be furnished undesirable discharge certificate. 8. On 13 January 1972, he was discharged accordingly; he completed 3 months and 13 days of net service for this term. 9. The applicant states he had many problems going on at home and requested to be transferred to be closer to home. He also stated that he did have honorable service. The applicant’s record shows he had 8 months honorable service and 291 days lost time. He also applied to the Army Discharge Review Board (ADRB); the board reviewed the applicants overall record of service and concluded that the discharge was proper. The board took note of the applicant’s lost time, totaling 291 days as a result of three AWOL periods for 208 days as well as two military confinements for the remainder of the time. 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. 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 discussed the applicant’s record to include a previous Honorable discharge, the nature of his misconduct, his statement regarding problems at home, and whether to apply clemency. The Board noted an absence of other statements of support or post-service accomplishment from the applicant. The Board determined, based on the preponderance of evidence that the character of service the applicant received was not in error or unjust. 2. After reviewing the application and all supporting documentation, the Board determined that relief was not warranted. 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 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. ABCMR Record of Proceedings (cont) AR20190002057 2 ABCMR Record of Proceedings (cont) AR20190002057 1