ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 September 2019 DOCKET NUMBER: AR20190009774 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20090008795 on 10 November 2009. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 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 16 May 2019 * an extract (page 2) of Standard Form (SF) 88 (Report of Medical Examination), dated 3 September 1976 * DD Form 214 (Report of Separation from Active Duty), for the period ending 13 July 1978 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 AR20090008795 on 10 November 2009. 2. As a new argument, the applicant states he would like his discharge upgraded based on the fact that both his eyes were hurting while he was on active duty and he could not get the help he needed to get them fixed. He left and went home with severe pain in both eyes and had surgery on both of them. There was neglect on the Army's part for not taking his eye condition seriously. 3. The applicant enlisted in the Regular Army on 21 September 1976. 4. The applicant's service record contains the following forms documenting his entrance examination on 2 September 1976: a. SF 88 that shows the applicant’s vision was correctable to 20/40 in both eyes, he passed the color vison test, and was qualified for enlistment on 3 September 1976. b. SF 93 (Report of Medical History) that shows the applicant noted he did not wear glasses, had vision in both eyes, and was in good health. 5. The applicant accepted nonjudicial punishment (NJP) on 12 August 1977, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 12 July through on or about 10 August 1977. 6. Court-martial charges were preferred against the applicant on 12 April 1978, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 17 August 1977 through on or about 30 March 1978. 7. The applicant underwent a separation physical on 12 April 1978. On his Report of Medical History, he noted that he wore glasses, had vision in both eyes, was in fair heath, and had "no current med problems." The Report of Medical Examination noted that he "doesn’t have glasses with him and could not see anything" and "SM [service member] waived option for follow-up." Block 78 of this form also shows he waived his option to have further special examinations. The examining physician qualified him for separation. 8. The applicant consulted with legal counsel on 13 April 1978. 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 bad conduct 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. In an attached statement, he stated: Dear Sir, the reason for me joining the Army was to see what it was like, and I found out that I didn’t like it and I tried to fight it and stay in. And I went home on leave and my mother was home alone. My brother and sister had left home. My mother [unreadable]. And once I came back to the Army, I felt that they didn’t do at home, so I came home and got a job. My MOS was 11C. The reason I request a Chapter 10 is because I want to get out Army and that was the best way to get out. And I also felt that if I had stayed in this Army by doing it could have caused a mental problem. Age 23. 9. The applicant’s immediate and intermediate commanders recommended approval of his separation request on 22 May 1978. Both commanders recommended he be discharged UOTHC. 10. The separation authority approved the applicant's request for discharge on 26 May 1978, 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 794A (UOTHC Discharge Certificate). 11. The applicant was discharged on 13 July 1978, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 he was issued shows he was credited with completing 1 year, 1 month, and 13 days of total active service, he accrued 263 days of lost time due to being AWOL, 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 applicant applied to the ABCMR for an upgrade of his UOTHC discharge; however, the Board denied his request on 10 November 2009. 14. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement, and did not find any evidence of error, injustice, or inequity. The applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. In particular, the service record does not corroborate the applicant's claim to have had an eye condition and he did not mention an eye condition in the statement he provided in conjunction with his request for discharge in lieu of trial by court-martial. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is appropriate. 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. X CHAIRPERSON 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 states 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018, 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 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.