IN THE CASE OF: BOARD DATE: 24 February 2020 DOCKET NUMBER: AR20190005506 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Letter, dated 13 May 2019 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 his discharge is inequitable because it was based on one isolated incident in 14 months of service with no other adverse action. His military service was an easy time in his life, he just needed to follow the orders he was given. He had honorable service prior to a "fight" and he was given the choice of being discharge. At the time he thought a discharge was the easiest and best choice. Now he asks that his character of service be upgraded because he had 14 months of service that was honorable. 3. On 12 October 1982, the applicant enlisted in the Regular Army for 4 years. He held military occupational specialty 11B (Infantryman). 4. A Personnel Action shows: a. On 5 December 1983, his duty status changed from present for duty to absent without leave (AWOL). b. On 3 January 1984, his duty status changed from AWOL to dropped from Army rolls. On 4 January 1984, at 2233 hours he was returned to military control at his unit, Headquarters and Headquarters Company, 2nd Battalion, 34th Infantry Division, Fort Stewart, GA, and his duty status changed to present for duty. c. A Check list for Pretrial Confinement shows: (1) On 5 December 1983, at 600 hours, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being AWOL from his place of duty from 1105 hours until 1300 hours on 28 November 1983; for being AWOL from the company formation on 28 November 1983; and for communicating a threat to a commissioned officer on 23 November 1983. His punishment consisted of reduction to the rank of private/E2, a forfeiture of pay, and extra duty. (2) The applicant also left his unit in an AWOL status from 5 December 1983 to 4 January 1984 until he was apprehended by Wayne County Sheriff's Department, Jessup, Georgia. (3) Based on the applicant’s irresponsible acts, the commander felt that he should be eliminated from the service and that all steps should be taken to ensure that he was around long enough for the military justice system to work. The only way to ensure his presence was to incarcerate him. The unit had no way to safeguard him. Further, he shared a trailer with another private, who was in the unit and had also departed AWOL twice. Both individuals were apprehended and returned to duty on 4 January 1984. 5. On 5 January 1984, the following actions occurred: a. He was charged with being AWOL from 5 December 1983 to 4 January 1984, approximately 30 days and he was approved for pretrial confinement while awaiting courts-martial charges to ensure his presence for trial. b. 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 declined an opportunity to submit statements in his own behalf and waived a physical examination. (1) The applicant's chain of command recommended approval of his request with the issuance of an UOTHC discharge. (2) On 13 January 1984, the appropriate authority approved the applicant’s request for discharge, directed reduction to the lowest enlisted grade, and that his service be characterized as UOTHC. 6. On 17 January 1984, he was discharged accordingly. His DD Form 214 shows he completed 1 year, 2 months, and 6 days of total active service; he also had lost time from 5 December 1983 through 3 January 1984. His authorized awards are listed as the Army Service Ribbon, Marksman Marksmanship Qualification Badge and “2nd Class Hand Grenade.” 7. Army Regulation 635-200 states 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 the individual has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 8. The applicant states his discharge is inequitable because it is based on one isolated incident, within 14 months of service, with no other adverse action. He had honorable service prior to a "fight." His service record contains no evidence concerning a fight. 9. Records show he completed 1 year, 2 months, and 6 days of his 4 year service obligation; he went AWOL twice, and he had 30 days of lost time. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD 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 and the reason for his separation. The Board noted the facts presented above. The Board noted that he had legal counsel, that he voluntarily requested discharge under the provision of Chapter 10, in lieu of trial by court-martial, that he declined to submit a statement in his defense, that he acknowledged his understanding that by requesting discharge, that 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, and that he could receive a discharge under other than honorable conditions. 2. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, basis for clemency, or that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with 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 could be 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 discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. 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. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190005506 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190005506 6 ABCMR Record of Proceedings (cont) AR20190005506 5