BOARD DATE: 22 October 2019 DOCKET NUMBER: AR20190008916 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR2000049998 on 8 May 2001. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 10 June 2019 * an undated, self-authored letter * three undated third party letters from friends * an undated letter from a former Soldier * a letter from a reverend, dated 20 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 AR2000049998 on 8 May 2001. 2. The applicant submitted new evidence with this application that was not considered by the Board during its initial consideration. Therefore, this new evidence warrants consideration at this time. 3. The applicant states: a. He is older and a little wiser and he now realizes that he wants his time in the military to count for something. He fully understands and regrets the mistakes he made and he respectfully asks that he be allowed to identify himself as an honorably discharged Veteran. He has had a successful career and he obtained a post-graduate education. He would now like to correct his biggest mistake. An upgrade of his discharge would bring light to a very dark part of his past. Please allow him to humbly stand before the ABCMR to make his formal request and to answer any and all questions asked of him. b. He is a true believer in the notion that he should finish what he starts and he knows he cannot go back in time to correct what he believes is the biggest mistake of his life. He can stand before the Board and ask for a chance to finish what he started so long ago. He makes no excuses for his bad and thoughtless behavior. All he can do is demonstrate his regret for his past transgressions. He is asking for a few minutes of the Board's valuable time to show he has learned and suffered from the mistakes he made over the years. He believes that everyone is deserving of a second chance. 4. The applicant enlisted in the Regular Army on 9 August 1977. He completed training as a cook. 5. The applicant was counseled on at least seven separate occasions between 18 February and 14 June 1978, for the following offenses: * being late for duty (five incidents) * failure to report to his appointed place of duty at the time prescribed * reporting for duty at the prescribed time * reporting late for duty at the mess hall 10 times in the last three months 6. The applicant accepted nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 8 March 1978, for failing to go at the prescribed time to his appointed place of duty, on or about 1 March 1978 * on or about 31 May 1978, for assaulting a civilian, on or about 26 March 1978 * on 8 August 1978, failing to go at the prescribed time to his appointed place of duty, on or about 13 July 1978 7. The applicant received a rehabilitative transfer outside his battalion on 22 December 1978. The applicant's commander cited his three Articles 15, his being late for duty a total of 13 times, and his negative attitude as the basis for the rehabilitative transfer. 8. Court-martial charges were preferred against the applicant for violations of the UCMJ; however, the relevant DD Form 458 (Charge Sheet) is not available for review. However, the Army Discharge Review Board (ADRB) Case Report and Directive shows charges were preferred against him for one specification of violating Article 121 (larceny and wrongful appropriation) and four specifications of violating Article 86 (absence without leave (AWOL)). 9. The applicant consulted with legal counsel on or about 21 March 1979. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions 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 was advised he could submit any statements he desired in his own behalf. His request shows he elected not to submit a statement. 10. The separation authority approved the applicant's request for discharge on 6 April 1979 and directed his reduction to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 11. The applicant was discharged on 7 May 1979, 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 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 12. 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. 13. The ADRB determined that the applicant's discharge was both proper and equitable. 14. The ABCMR denied the applicant's request for an upgrade of his UOTHC discharge on 8 May 2001. 15. As new evidence not previously considered, the applicant provides three letters from friends, a letter from a former Soldier, and a letter from a reverend attesting to his good character and post-service conduct. 16. 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 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 evidence of charges, his request for discharge and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. The Board considered the letters of reference the applicant provided but found them insufficient to overcome the serious misconduct or to support 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. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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 to amend the decision of the ABCMR set forth in Docket Number AR2000049998 on 8 May 2001. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. 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 HD. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 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 UOTHC is normally considered appropriate. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190008916 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190008916 6 ABCMR Record of Proceedings (cont) AR20190008916 5