IN THE CASE OF: BOARD DATE: 17 January 2020 DOCKET NUMBER: AR20190007339 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20130015590 on 20 May 2014. 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 or Dismissal from the Armed Forces of the United States), dated 2 May 2019 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 AR20130015590 on 20 May 2014. 2. The applicant states that during his time with the 82nd Signal Battalion, he performed his job very well. Unfortunate incidents blindsided his career. He was repeatedly traveling back home to Weldon, NC, to take care of his alcoholic father. He did not realize the toll this was taking on him. After two years of doing this, his father passed away, which was devastating. Three months after his father's passing, he was traveling to West Point to train Cadets when he was involved in a fatal motor vehicle accident. He suffered several injuries but another person was killed. He was afraid of being punished and received some bad advice. He panicked, which led him to go absent without leave (AWOL). He felt lost, depressed, and worthless. After many years, he has finally gotten himself together. He is an addictions counselor and a certified peer recovery support specialist for the State of Maryland. He is hoping that an upgrade to his discharge will allow him to further his career and to assist Veterans who suffer from drug and alcohol addiction, depression, anxiety, and low self-esteem. 3. The applicant enlisted in the Regular Army on 14 June 1977. Upon completion of his initial entry training, he was stationed at Fort Bragg, NC. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 26 November 1979, for being AWOL from on or about 30 July 1979 through on or about 7 November 1979 * on 14 January 1980, for being AWOL from on or about 7 January 1980 through on or about 9 January 1980 * on 10 April 1980, for failure to report to his place of duty at the prescribed time on or about 7 April 1980 5. Court-martial charges were preferred against the applicant on 15 December 1980, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 8 September 1980 through on or about 15 December 1980. 6. The applicant consulted with legal counsel on or about 17 December 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 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 Department of Veterans Affairs (VA), 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 on his behalf. In a provided statement, he noted that prior to being AWOL he had never been in any other trouble, which is why he should receive a Chapter 10 discharge. He was going through a very hard time with the passing of his father and being separated from his family. His family almost lost their family farm. His grandparents couldn't afford to pay anyone, which is why he had to leave and go work the farm. With all of this going on, his mind is very mixed up and he cannot adjust. 7. The separation authority approved the applicant's request for discharge on 20 January 1981, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and that he be discharged UOTHC. 8. The applicant was discharged on 29 January 1981, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 9. 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. 10. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 20 May 2014, determined he was properly discharged, and denied his request for relief. 11. 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 (circumstances regarding the period of AWOL), his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. 2. The Board noted the statement he provided with his request for discharge in lieu of trial by court-martial as well as the statement he provided with his application, and agreed that these statements provide a basis for clemency. Based on a preponderance of evidence, the Board determined the applicant's character of service should be upgraded to under honorable conditions (general). 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 reissuing his DD Form 214 for the period ending 29 January 1981 to show his service was characterized as under honorable conditions (general). 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, U.S. Code (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) AR20190007339 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190007339 5 ABCMR Record of Proceedings (cont) AR20190007339 4