BOARD DATE: 10 February 2020 DOCKET NUMBER: AR20190006588 APPLICANT REQUESTS: in effect, his under other than honorable conditions (UOTHC) discharge be upgraded. 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 26 March 2019, with self-authored statement * DD Form 214 (Report of Separation from Active Duty), for the period ending 21 May 1974 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, in effect: a. His brother was in a car wreck in Germany, in 1973, and he was in a German ICU. He went to his commander but was told he couldn’t go because the Red Cross hadn't called. He got mad and grabbed a stick; he and the commander had a few words by mouth. The commander got him money to go see his brother. When he returned, he and the commander had a talk about his mother having a hard time with her living situation. The commander gave him emergency leave, and told him to fill out paperwork for a hardship discharge. b. When he got home he worked for Ford Motor Company. His commander told him to turn the papers in at Fort Knox, Kentucky. He was charged with being absent without leave (AWOL) for getting back late after being arrested, and was placed in the stockade for six to eight days. He saw a man beat down because he was hard headed; that was stressful to him. In the stockade, he was asked if he wanted to get out of the military; he was told his discharge would be changed to general after six months. 3. The applicant enlisted in the Regular Army on 21 December 1972. He served in Germany from 24 May 1973 until on or about 09 September 1973. He attained the rank/grade of private (PV2)/E-2. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions for the following offenses: * on 28 March 1973, for unlawful possession of a knife with a blade longer than three and half inches in length, on or about 22 March 1973, at Fort Knox, KY * on 25 July 1973, for absenting himself from his unit, from on or about 23 July 1973 until 24 July 1973; and for failing to go at the time prescribed to his appointed place of duty, on or about 25 July 1973, at Furth, Germany 5. Court-martial charges were preferred against the applicant on, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from: * on or about 10 September 1973 through on or about 13 September 1973 * on or about 17 September 1973 through on or about 1 April 1974 6. The applicant consulted with legal counsel. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge 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 provided a statement in his own behalf, wherein he stated his attitude toward the Army got worse because of the way of life demanded of a Soldier; he could not go on like that. The Army made his problems worse; he was told he could make good money in the Army and he wanted to make money so he could help his mother and his brothers. He couldn't live off the money he made because he sent it home to support his family. The Army couldn't do anything for him so he wasn't going to do anything for the Army. He acknowledged his attitude would get worse but he would keep trying. 7. The applicant's immediate and intermediate commanders recommended approval of his discharge request on 29 April 1974, under the provisions of Army Regulation 635-200, Chapter 10, and recommended he receive an undesirable discharge. 8. The separation authority approved the applicant's request for discharge on 6 May 1974, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 9. The applicant was discharged on 21 May 1974, under the provisions of Army Regulation 635-200, Chapter 10. The DD Form 214 he was issued confirms his service was characterized as UOTHC. 10. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. The Board should consider the applicant's request, his 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 record of service, the frequency and nature of his misconduct, the charges against him, his request for discharge and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct 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. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD 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. 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 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 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 Office of the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs 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) AR20190006588 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190006588 5 ABCMR Record of Proceedings (cont) AR20190006588 4