ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20190003962 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provision of Title 10, U.S. Code, Section) * three third-party character reference statements * DD Form 214 (Report of Separation from Active Duty), for the period ending in 15 May 1977 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending in 14 March 1980 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 did not make a statement in support of his request. 3. The applicant enlisted in the Regular Army on 1 November 1974. He served honorably for two years, six months, and 15 days, before being discharged for immediate reenlistment on 15 May 1977. He was issued a DD Form 214 for this period that confirms his service was characterized as honorable. 4. The applicant reenlisted in the Regular Army on 16 May 1977. 5. Court-martial charges were preferred against the applicant on 18 July 1979, for violations of the Uniform Code of Military Justice (UCMJ). His record contains a DA Form 2-2 (Insert Sheet to DA Form 2-1 Record of Court-Martial Conviction) that shows he was charged with assaulting a fellow Soldier, on or about 9 March 1979. 6. The applicant’s record is void of a request for discharge in lieu of trial by court- martial or other separation processing documents. However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 14 March 1980, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. His DD Form 214 further shows he was discharged in the rank/grade of private/E-1 and his service was characterized as UOTHC. 7. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service. 8. The applicant provides three third-party character reference statements, in which the authors attest that the applicant is a God fearing man; is a great contributor to society; spreads the word of the Lord; is an associate minister in the church; is kind hearted; is a family man who leads his household according to the precepts of God; and is of excellent character and integrity. 9. The applicant also provides a copy of his DD Form 214 for the period ending 15 May 1977, which shows he was honorably discharged. 10. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 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 record, a previous honorable discharge, the nature of his misconduct, the reason for his separation, the absence of a separation packet and whether to apply clemency. The Board found no in-service mitigation for his misconduct, but considered the post-service letters of reference the applicant provide in support of clemency. The Board found that his post-service conduct was sufficient to warrant a determination for clemency and agreed that an upgrade of the applicant’s discharge was appropriate. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for 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 14 March 1980 to reflect in item 24 (Character of Service) – “Honorable” vice “Under other than honorable conditions.” 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, U.S. Code, 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits 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. Paragraph 3-7b provides that 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 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-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 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, 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 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) AR20190003962 2 1