IN THE CASE OF: BOARD DATE: 2 April 2020 DOCKET NUMBER: AR20190006009 APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 1 April 2019 * Memorandum, 502nd Military Police Company, dated 11 January 1986 * DD Form 214 (Certificate of Release or Discharge from Active Duty), with a separation date of 3 February 1986 * National Archives and Records Administration (NARA), Military Personnel Records (MPR) Registry Search * Letter, Department of the Army, Army Review Board Agency (ARBA), dated 30 January 2020 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 states he was a hardworking and loyal Soldier. He received unfair treatment and unjust harassment for approximately eight months while assigned to the 502nd Military Police Company, 2nd Armored Division, Fort Hood, TX. He discovered the letter of recommendation for a general discharge from his commander on 10 December 2018, when he received a copy of his military records. Based upon this recommendation, he would like to request an upgrade of his discharge. 3. The applicant enlisted in the Regular Army on 23 January 1984. 4. The applicant’s record is void of the facts and circumstances that led to his discharge. However, he provides a memorandum that shows his immediate commander recommended approval of his request for discharge on 11 January 1986, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. His commander recommended he be issued a general discharge. The commander further stated the applicant's absent without leave (AWOL) periods were based upon his inability to adjust to the rigors of Army life, coupled with his financial difficulties. He was a hard, loyal worker when at work. A general discharge would give him the opportunity to start over in civilian life. A UOTHC discharge, in the opinion of his first and second line leaders and the commander, would be unwarranted. 5. The applicant was discharged on 3 February 1986, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 and his service was characterized as UOTHC. 6. 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. 7. The applicant's military records were requested from NARA without success. A letter was sent to the applicant by ARBA on 30 January 2020, requesting a copy of his separation documents. The applicant returned the present copy of his DD Form 214. 8. The Board should consider the applicant's statement and provided evidence 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, 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 character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. 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, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 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 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 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, in effect at the time, set 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 of that regulation provides, in pertinent part, 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 under other than honorable conditions 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190006009 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190006009 5 ABCMR Record of Proceedings (cont) AR20190006009 4