IN THE CASE OF: BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20190009287 APPLICANT REQUESTS: The applicant requests 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) * DD Form 214 (Certificate of Release or Discharge) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150015648 on 21 February 2017. 3. The applicant requests an upgrade on his discharge because at the time of his grandmother’s funeral, he was having a lot of emotions. He was young and did not understand what the army was making him do by forcing him out of the service. 4. On 8 December 1977, at the age of 18, enlisted in the Army Reserve (USAR) Delayed Entry Program (DEP). On 11 July 1978 he enlisted into the Regular Army for a period of 3 years. He successfully completed training and airborne school and assigned to Fort Bragg, NC on 8 December 1978. The highest rank/grade he obtained was Specialist Four/E4 on 19 December 1979. 5. On 18 March 1980, he was charged with being absent without leave (AWOL) from 29 January 1980 to on or about 17 March 1980 (47 Days). 6. On 20 March 2001, he requested a discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial and his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits and opted not to submit a statement on his own behalf. On the same date, he under a mental status evaluation that indicated, he had no significant mental illness, was mentally responsible and able to distinguish from right and wrong. He had the mental capacity to understand and participate in separation Board proceedings. 7. On 25 April 1980, the appropriate authority approved the applicant’s request in lieu of trial by court-martial, directing the applicant be reduced to the lowest grade possible and that his service be characterized as UOTHC. 8. On 7 May 1980, the applicant was discharged accordingly. His DD Form 214 shows he completed 1 year, 8 months, and 9 days of net active service, and is authorized the Parachute Badge and expert for the M-16 rifle. Block 18, shows he had 47 days lost time for being in AWOL status. 9. On 21 February 2017, the applicant requested an upgrade to his discharge under AR20150015648. His contentions for the submission was that he was young and did not clearly understand the consequences of his actions for taking off without proper permission. The Board denied his request, stating that the evidence presented does not demonstrate the existence of a probable error or injustice. 10. Army Regulation 635-200 states a UOTHC when separated under Chapter 10 is authorized. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 11. The applicant states that he was young and didn’t understand what the Army was doing by forcing him out. His records shows that he completed 1year, 8 months, and 9 days of a 3 year contract. He was charged with going AWOL for 47 days and requested a discharge in lieu of a trial by court-martial in accordance with Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), chapter 10. 12. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency 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 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 :XXX :XXX :XXX 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 Army Board for Correction of Military Records (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 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, BCM/NRs 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) AR20190009287 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009287 6 ABCMR Record of Proceedings (cont) AR20190009287 4