ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 October 2019 DOCKET NUMBER: AR20190010268 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 Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 19 April 2019 .Orders 190-68, issued by Headquarters, Fort Devens, Fort Devens,Massachusetts on 30 September 1981 .a letter from the Interim Pastor of the First Baptist Church, Hanson,Massachusetts, dated 8 October 1981 .Personnel Control Facility (PCF) Interview Sheet, dated 8 January 1982 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 made a choice to leave the military for personal familymatters and religious beliefs. He did go through his chain of command for propermilitary procedures. 3.Following prior active service, the applicant reenlisted in the Regular Army on12 July 1979. 4.Court-martial charges were preferred against the applicant on 11 January 1982, forviolations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (ChargeSheet) shows he was charged with being absent without leave (AWOL) from on orabout 27 August 1981 through on or about 7 January 1982. 5.The applicant consulted with legal counsel on or about 13 January 1982. 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 UOTHC 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 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, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c.He elected not to submit a statement in his own behalf. 6.The separation authority approved the applicant's request for discharge on20 January 1982, and directed his reduction to the lowest enlisted grade and theissuance of a DD Form 794A (UOTHC Discharge Certificate). 7.The applicant was discharged on 2 February 1982, under the provisions of ArmyRegulation 635-200, Chapter 10, for conduct triable by court-martial. The DD Form 214(Certificate of Release or Discharge from Active Duty) he was issued confirms he wasdischarged in the lowest enlisted grade and his service was characterized as UOTHC. 8.The applicant provides a letter from his Interim Pastor, dated 8 October 1981, inwhich his pastor recommended that he be discharged from the Army based onemotional and financial hardship. 9.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 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 and letter of reference, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board determined the evidence presented showing thatthe applicant suffered from emotional and financial hardship at the time of hisseparation, that with his prior honorable service, warrant a recommendation for reliefas a matter of clemency and equity. As a result, the Board recommends that theapplicant’s character of service for the period ending 20 January 1982 be changed to general under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Board recommends that the applicant’s character of service for the period ending 20 January 1982 be changed to general under honorable conditions. 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. 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 635-200 sets forth the basic authority for the separation of enlistedpersonnel. a.Paragraph 3-7a provides that an honorable discharge is a separation with honorand 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//