BOARD DATE: 24 October 2019 DOCKET NUMBER: AR20190011136 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 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 12 July 2019 * DD Form 214 (Report of Separation from Active Duty), for the period ending 9 January 1978 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 Military Records (ABCMR) 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. The applicant states he was told he was being let out on a Chapter 13 discharge, and after six months, his character of service would be changed to honorable. He would not have taken the discharge if he hadn’t believed his sergeant. 3. The applicant enlisted in the Regular Army on 14 November 1975. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 19 August 1976, for failure to go at the time prescribed to his place on duty, on or about 6 August 1976 * on an illegible date, for being absent from his place of duty and for disobeying a lawful order on or about 3 June 1977, and for disobeying a lawful regulation, on or about 3 June 1977 * on an illegible date, for missing movement through neglect, on or about 31 August 1977 5. A DA Form 3822-R (Report of Mental Status Evaluation), dated 9 November 1977, shows the applicant was found to be mentally capable to proceed in board proceedings. 6. The applicant's commander notified the applicant on 21 November 1977, that actions had been initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a, for misconduct – frequent incidents of a discreditable nature with civil or military authorities. 7. The applicant acknowledged receipt of the proposed separation memorandum on 29 November 1977. He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights. He elected not to make a statement in his own behalf. He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event an UOTHC discharge was issued to him. 8. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, for misconduct, because of frequent incidents of a discreditable nature. 9. The separation authority approved the recommended discharge on 19 December 1977, under the provisions of Army Regulation 635-200, Chapter 13, and directed the issuance of a DD Form 794A (UOTHC Discharge Certificate). 10. The applicant was discharged on 9 January 1978. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a (1), and his service was characterized as UOTHC. 11. The Board should consider the applicant's statement and overall record 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, regulatory requirements, 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 noted that the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights. He elected not to make a statement in his own behalf. He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event an UOTHC discharge was issued to him. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. There is not automatic upgrade for any character of discharge. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 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 : 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. 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, in effect at the time, set 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 honorable discharge. c. Paragraph 13-5(a), as then in effect, provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts. When separation for unfitness was warranted an undesirable discharge was 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// ABCMR Record of Proceedings (cont) AR20190011136 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011136 5 ABCMR Record of Proceedings (cont) AR20190011136 4