ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings  IN THE CASE OF:   BOARD DATE:  11 June 2020 DOCKET NUMBER:  AR20190009970 


APPLICANT 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 293 (Application for the Review of Discharge from the Armed Forces ofthe United States), dated 20 May 2019

.Fort Leonard Wood (FLW) Form 648 (Certificate of Achievement)

.DA Forms 87 (Certificate of Training) (two)

.DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 26 January 1981



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, U.S.Code (USC), Section 1552 (b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states he served for over three years with no problems.  On his lastassignment, he was stationed at Fort Ord, California.  His mother needed him, sheappeared to be in danger and needed his protection.  He requested leave but wasbrushed off.  He left to care for his mother.  He was contacted within a couple of weeksby the Army.  He went to Fort Ord, was transferred to Oahu, was discharged with anArticle 15 [nonjudicial punishment (NJP) under the provisions of Article 15 of theUniform Code of Military Justice (UCMJ)], and was barred from reenlistment.  He isrequesting his discharge be changed to honorable.

3.The applicant enlisted in the Regular Army on 11 July 1978.

4.The applicant completed basic and advanced individual training, where he wasawarded a Certificate of Achievement for achieving a score of 100 percent on his PhaseII training examination, and a Certificate of Training for completing his militaryoccupational specialty (MOS).  He received a second Certificate of Training on10 January 1980, for completing an eight hour Field Generator Seminar.

5.The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on thefollowing dates for the indicated offenses:

.on 16 May 1980, for being absent without leave (AWOL), from on or about18 April 1980 until on or about 29 April 1980

.on 5 June 1980, for being AWOL, from on or about 0715 hours, 15 May 1980until on or about 0830 hours, 16 May 1980; for disobeying a lawful order from acommissioned officer, on or about 19 May 1980; and for failing to go at theprescribed time to his appointed place of duty, on or about 19 May 1980, 20 May1980, 23 May 1980, 27 May 1980, and 2 June 1980

.on an unclear date, for being AWOL, from on or about 21 June 1980 until on orabout 24 June 1980

.on 17 July 1980, for a reported seven specifications of Article 86 (Failure toRepair)

.on or about 27 August 1980 for being AWOL, from on or about 24 July 1980 untilon or about 4 August 1980; and for disobeying a lawful order, on or about 3 July1980

.on 22 October 1980, for failing to go at the prescribed time to his appointed placeof duty, on seven occasions between 2 October 1980 and 17 October 1980



6.The applicant was afforded two mental status evaluations, on 3 November 1980 andagain on 23 January 1981.  Both found he met retentions standard and cleared him toparticipate in any administrative actions deemed appropriate.

7.Court-martial charges were preferred against the applicant on 7 January 1981, forviolations of the UCMJ.  The relevant DD Form 458 (Charge Sheet) shows he wascharged with two specifications of failure to go at the prescribed time to his appointedplace of duty, and for being AWOL from on or about 2 December 1980 until on or about2 January 1981.

8.The applicant consulted with legal counsel on 14 January 1981.

a.He was advised of the basis for the contemplated trial by court-martial, themaximum permissible punishment authorized under the UCMJ, 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 requesteddischarge 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.The applicant provided an undated statement out lining his rationale for hisrepeated failure to go and AWOL infractions indicating he was working a civilian job that caused him to miss formations and problems with his family's financial situation.  

9.The separation authority approved the applicant's request for discharge on16 January 1981, under the provisions of Army Regulation 635-200, Chapter 10, in lieuof trial by court-martial, and directed that the applicant be reduced to the lowest enlistedgrade and discharged UOTHC.

10.The applicant was discharged on 26 January 1981.  The DD Form 214 he wasissued shows he was discharged under the provisions of Army Regulation 635-200,Chapter 10, for the good of the service, and his service was characterized as UOTHC.His DD Form 214 further shows he was discharged in the lowest enlisted grade.

11.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial.

12.The applicant's record documents no acts of valor, significant achievement, orservice warranting special recognition.

13.The Board may consider the applicant's petition, his service record, and hisstatements in light of the published guidance on equity, injustice, or clemency.

BOARD DISCUSSION: 

1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records and published DoD guidance for consideration of dischargeupgrade requests.  The Board considered the applicant’s statement, his record ofservice, the frequency and nature of his misconduct and the reason for his separation.The Board found insufficient evidence of in-service mitigating factors to overcome hismisconduct and the applicant provided no evidence of post-service achievements orletters of reference in support of a clemency determination.  Based on a preponderanceof evidence, the Board determined that the character of service the applicant receivedupon separation was not in error or unjust.

2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XX :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. 



X


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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The regulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

3.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  It provides:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.  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 provides that a member who has committed an offense or offensesfor 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. 

4.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemencygenerally refers to relief specifically granted from a criminal sentence.  Boards forCorrection 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. 
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