ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  9 October 2020 DOCKET NUMBER:  AR20190002890 


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20100025353 on 14 April 2011.  Specifically, he 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 Review of Discharge from the Armed Forces of theUnited States), dated 22 January 2019



FACTS: 











1.Incorporated herein by reference are military records that were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket NumberAR20100025353 on 14 April 2011.2.The applicant states, in effect, he did not understand or know what he was doing. Hehas a mental problem; he was shell shocked from the Army.  He did not tell anyone thathe was in need of help.  He does not have any supporting documents.3.The applicant enlisted in the U.S. Army Reserve on 20 December 1973 under thedelayed entry program (DEP).  He enlisted in the Regular Army on 8 January 1974 for atwo year obligation.4.The applicant was assigned to Bravo Battery, 3rd Battalion, 61st Air DefenseArtillery, 3rd Armored Division on 27 January 1974, in the Federal Republic of Germany.5.The applicant accepted non-judicial punishment, under the provisions of Article 15 ofthe Uniform Code of Military Justice (UCMJ) on the following dates:•on 7 February 1975, for being absent without leave (AWOL) from on or about 13January to on or about 20 January 1975 and for disobeying a lawful order on orabout 22 January 1975


.on 23 February 1975, for failing to go to the time prescribed to his appointedplace of duty on or about 11 February 1975

.on 15 May 1975, for breaking restriction on or about 24 April 1975



6.Court-martial charges were preferred against the applicant on 4 April 1975, forviolations of the UCMJ.  His DD Form 458 (Charge Sheet) shows he was charged with:

a.Specification 1: stealing one hundred Deutsche Marks from another Soldier, bymeans of force and violence and putting him in fear, at Armstrong Barracks, Buedingen, Federal Republic of Germany, on or about 29 March 1975. 

b.Specification 2: stealing eighty Deutsche Marks from the same Soldier by meansof force, on or about 1 April 1975. 

7.The applicant record contains three additional DD Forms 458 which show additionalcharges were preferred against him for:

a.Committing assault on another Soldier by drawing on him a dangerous weapon(knife), on or about 22 April 1975. 

b.Breaking restriction, on or about 6 May 1975.

c.Breaking restriction, on or about 17 May 1975.

8.The applicant consulted with counsel on 23 May 1975.

a.He was advised of the basis for the contemplated trial by court-martial, themaximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him.   

b.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge 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 advised he could submit any statements he desired in his own behalf.  Hedeclined to submit a statement in his own behalf. 

9.The separation authority approved the applicant's request for discharge on13 June 1975, under the provisions of Army Regulation 635-200, Chapter 10, in
lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted gradeand that he be issued a DD Form 258A (Undesirable Discharge Certificate).

10.The applicant was discharged on 23 June 1975, under the provisions of ArmyRegulation 635-200, Chapter 10, in lieu of trial by court-martial.  His DD Form 214confirms he was discharged in the lowest enlisted grade and his service wascharacterized as UOTHC.

11.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial.

12.The applicant petitioned the Army Discharge Review Board (ADRB) for an upgradeto his service characterization.  The ADRB considered his request on 1 August 1977,determined he was properly discharged, and denied his request for relief.

13.The Office of the Adjutant General, Reserve Components Personnel andAdministration Center, St Louis, MO, notified the applicant on 12 December 1978 of hisrights based on Court Decision Number 76-0530, dated 23 August 1978, whichprovided for a new hearing under the provisions of the Special Discharge ReviewProgram or a new hearing to regain his Veterans Benefits.   The applicant was provideda DD Form 293 to apply for consideration under the program.

14.The ADRB reviewed his record a second time on 26 June 1979, determined he wasproperly discharged, and denied his request.

15.The applicant petitioned the ABCMR for an upgrade to his service characterization.The ABCMR considered his request on 14 April 2011, determined he was properlydischarged, and denied his request for relief.

16.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance.




BOARD DISCUSSION: 




The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, his request for discharge, the reason for hisseparation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XXX :XX DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100025353, dated 14 April 2011. 

X CHAIRPERSON


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. 
REFERENCES: 

1.Army Regulation 635-200, in effect at the time, set forth the basic authority for theseparation of enlisted personnel.  This regulation provided that:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.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.   

c.Chapter 10 of that regulation provided, in pertinent part, that a member who hadcommitted 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 must have been 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 UOTHC discharge was normally considered appropriate. 

2.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemencygenerally refers to relief specifically granted from a criminal sentence.  Boards forCorrection of Military/Naval Records may grant clemency regardless of the court-martialforum.  However, the guidance applies to more than clemency from a sentencing in acourt-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 andprinciples 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 ofservice 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//