BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20190003874 APPLICANT REQUESTS: The applicant requests in effect his under other than honorable conditions (UOTHC) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Statement * VA Form 21-0958 (Notice of Disagreement) 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 strongly disagrees on what is being said about him. Since he was 18 years old, he wanted to be a Soldier. He attempted 10 different times to get into the Army. He wanted to go into the Army Reserve but was put in the Regular Army. He was young with a wife and wanted the best them. He went AWOL but didn’t stay that long. a. When he was taken in, he was taken to Fort Sill, Oklahoma where they knew a black man had no chance but to do as he was told. He was given a chance to say anything and as a young black man in KKK land he was told to sign papers or else he would have to walk off base. As a young black man in KKK [klu klux klan] land, signed the papers and his life was over. Everything was taken away and he hasn’t been right since. b. He truly believes he should have an honorable discharge because of what they did to him and many others that were forced to sign there life away of being a good Soldier. They cost him his wife and family. c. He hurt his back but it wasn’t discussed all they believed is what people with rank had to say. They didn’t give him a choice of having a court-martial; the only choice he had was to sign the paper and be taken to the plane. As a young black man he didn’t want to walk in KKK land so he signed the and believes you would have done the same if you were him. 3. On 22 January 1979, the applicant enlisted in the United States Army Reserve for 6 years at the age of 24. 4. On 18 November 1980, he was charged for being absent without leave (AWOL) until desertion from on or about 11 November 1980. 5. On 18 November 1980, 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 and indicated he would not submit statements in his own behalf. 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 directed the applicant be reduced to Private (E-1) and that he be furnished an other than honorable conditions certificate (OTHC). 6. On 16 December 1980, he was discharged accordingly; his DD Form 214 shows he completed 5 months, and 26 days. Approximately 498 days AWOL. 7. The applicant applied to the ADRB to upgrade his discharge. On 27 November 1981, the ADRB reviewed and denied the applicant's request for upgrade. The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized. 8. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. 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. 9. His record shows he went AWOL during his advanced individual training (AIT). The applicant’s records also show he received physical therapy for a strained back from lifting heavy boxes. 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 his service record, the nature and length of his absence, his statement regarding the circumstances of his discharge and consideration of clemency. The Board determined that there were insufficient mitigating factors and that the character of his service at discharge was not in error or an injustice. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. BOARD VOTE: OARD 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. x. 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) AR20190003874 2 ABCMR Record of Proceedings (cont) AR20190003874 1