ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20190002128 APPLICANT REQUESTS: The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service is characterized as general, under honorable conditions in lieu of under other than honorable conditions (UOTHC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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 (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 in effect, at the time of separation he was told his UOTHC discharge would be upgraded to a general discharge. He believes an error was made and he is requesting help. 3. On 10 July 1984, the applicant enlisted in the Regular Army and he was awarded military occupational specialty (MOS) 11B (Infantryman). On 24 October 1984, he was assigned to Fort Ord, CA, with the principal duties of his MOS. 4. The applicant was absent without leave (AWOL) from his unit at Fort Ord from 19 to 20 February 1985 and from 21 February to 15 May 1985 until he was apprehended by civil authorities and returned to military control at the U.S. Army Personnel Control Facility, Fort Ord. On 31 May 1985, court-martial charges were filed against him for the above AWOL. 5. On 31 May 1985, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court- martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 6. He acknowledged that he understood, if his request for discharge was approved, he could be furnished an UOTHC discharge. He was advised and acknowledged he understood the possible effects of an UOTHC discharge. He also acknowledged he understood that there was no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Discharge Review Board (ADRB) or the ABCMR if he wished a review of his discharge. He also acknowledged that he understood an act of consideration by either board did not imply that his discharge would be upgraded. Additionally, he elected not to submit statements in his own behalf. 7. On 1 October 1985, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, AR 635-200, and directed the issuance of an UOTHC discharge and reduction to the lowest enlisted grade, if appropriate. On 9 October 1985, the applicant was discharged accordingly. 8. His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with service characterized as UOTHC. This form also shows he completed 1 year and 6 days of creditable active service during the period under review and he had lost time on 19 February 1985 and from 21 February through 14 May 1985. He also had excess leave from 31 May through 9 October 1985. 9. Orders Number 192-336, Headquarters, 7th Infantry Division, Fort Ord, dated 3 October 1985, confirms effective 9 October 1985, he was assigned to the Separation Transfer Point for separation processing. 10. The applicant's voluntary requested a discharge under the provisions of Chapter 10, AR 635-200, for the good of the service to avoid a trial by court-martial, which was administratively correct and in conformance with applicable regulations. 11. The applicant contends at time of separation he was told his UOTHC discharge would be upgraded to a general discharge. He believes an error was made and he is requesting help. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. At the time of separation he acknowledged he understood he had the option of applying to the ADRB within that board's 15-year statute of limitations, or to the ABCMR for an upgrade of his discharge. The Board decides each case individually upon its own merits. 12. The applicant went AWOL twice (totaling 84 days). He completed 1 year of his 4 year service obligation. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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 did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is appropriate. 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. AR 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, an UOTHC discharge was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an Undesirable Discharge Certificate. 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. 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 based on 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) AR20190002128 4 1