ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20190006878 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20120019331 on 21 May 2013. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 9 April 2019 * DD Form 214 (Report of Separation from Active Duty), for the period ending 16 September 1977 * DA Form 4187 (Personnel Action), dated 11 August 1980 * DD Form 458 (Charge Sheet), dated 11 August 1980 * National Archives (NA) Form 13038 (Certification of Military Service), dated 19 February 2010 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120019331 on 21 May 2013. 2. The applicant submitted a new argument with this application that was not considered by the Board during its initial consideration. This new argument warrants consideration at this time. 3. The applicant states: a. He was at home on leave and had put in for reassignment to Fort McPherson, Georgia. However, while home on leave he received a knock at the door and it was the military police informing him that he was absent without leave (AWOL). He does not agree with the character of discharge he received, because he was home on leave and was not AWOL. He tried to get his discharge upgraded through the Department of Veterans Affairs (VA) back in 1982 and 1983 but the President at the time ended those discharge programs. b. He admits to the wrongdoing on his part but he believed that going through Fort McPherson was the right thing to do. He was not trying to be AWOL; he just wanted to get his family and to return. He did not know that the people he was talking to were not going to submit his paperwork. He has carried this on his back long enough and he is asking that this burden be lifted. He is in poor health, unable to eat anything, and can only drink. He has paid for this for some 37 years and he requests that he be allowed to die with the honor of knowing his country loves him as much as he loves her. 4. With prior enlisted service in the Georgia Army National Guard, the applicant enlisted in the Regular Army on 21 February 1978. He was honorably discharged for the purpose of immediate reenlistment on 15 May 1979. It is presumed that he was issued a DD Form 214 for this period, confirming his service during the period was honorable; however, this document is not available for review in this case. 5. The applicant reenlisted in the Army on 16 May 1979. 6. Court-martial charges were preferred against the applicant on 11 August 1980, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 21 April through on or about 5 August 1980. 7. The applicant consulted with legal counsel on 12 August 1980. 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 a UOTHC, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions 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 was advised he could submit any statements he desired in his own behalf. His request shows he made an election to submit a statement; however, the statement is not available for review. 8. The separation authority approved the applicant's request for discharge on 10 September 1980 and directed his reduction to the lowest enlisted grade (private/E-1) and the issuance of a UOTHC discharge. 9. The applicant was discharged on 29 October 1980, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court- martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was issued a DD Form 258A (Undesirable Discharge Certificate). 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 Army Council of Review Boards denied the applicant's request for a change to the characterization of his discharge on 5 February 1985. 12. The ABCMR denied the applicant's request for a discharge upgrade on 21 May 2013. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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 reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors 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 the character of service the applicant received upon separation was not in error or unjust. 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120019331, dated 21 May 2013. 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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 states 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 UOTHC discharge would normally be furnished to an individual who was discharged for the good of the service. 2. 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) AR20190006878 5 1