ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  20 February 2020 DOCKET NUMBER:  AR20190011615 


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or 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 28 June 2019

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552)

.DA Forms 2627-1 (Record of Proceedings Under Article 15, [Uniform Code ofMilitary Justice] UCMJ), dated 7 April 1972, 5 June 1972, 11 September 1972,and 23 August 1973



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:

a.He was only 16 years old when he requested to join the Army.  His recruiterrequired him to get his GED first, which he did, and he enlisted approximately five days after his 17 birthday.  He grew up on the streets and had been on his own since he was 13 years old.  He enlisted hoping to become a man in the Army.  He intended to make the Army his career. 

b.He served as a squad leader in basic training and as a platoon sergeant inadvanced individual training (AIT), despite being the youngest in his platoon.  He was the Company Soldier of the Month three times and the Battalion Soldier of the Month two times.  He was also on the company drill team.  Basically, he was a good Soldier 
who was young and made a few mistakes.  He only received four Article 15s for things that were not very serious.    

c.He is disappointed that things did not work out the way he planned.  He has spent17 years drilling oil and gas wells, five years driving truck, and he has had his own handyman business.  He is now 64 years old, but he will always be proud of being a U.S. Army Engineer Veteran.  He would like to know his military service was not in vain. 

3.The applicant enlisted in the Regular Army on 22 December 1971.  Upon completionof initial entry training, he was assigned to the 237th Engineer Battalion, Heilbronn,Germany.

4.The applicant accepted non-judicial punishment (NJP), under the provisions ofArticle 15 of the Uniform Code of Military Justice (UCMJ), on four occasions:

.on 7 April 1972, for absenting himself from his unit, without authority, from on orabout 3 April through on or about 5 April 1972

.on 5 June 1972, for stealing $186.00 in U.S. currency, on or about 3 June 1972

.on 11 September 1972, for driving in a reckless manner as to endanger the livesof others, on or about 10 September 1972

.on 23 August 1973, for disobeying a lawful order from a superiornoncommissioned officer (NCO), on or about 15 August 1973; for being derelictin the performance of his duties, on or about 17 August 1973; for usingdisrespectful language towards a superior NCO, on or about 21 August 1973



5.Court-martial charges were preferred against the applicant on 17 April 1987, forviolations of the UCMJ.  The relevant DD Form 458 (Charge Sheet) shows he wascharged with the following:

.seven specifications of failure to go at the time prescribed to his appointed placeof duty, from on or about 15 October 1973 through on or about 19 October 1973

.two specifications of unlawfully striking fellow Soldiers, on or about 11 October1973

.one specification of committing an assault upon a fellow Soldier with a meanslikely to produce grievous bodily harm, on or about 12 October 1973



6.The applicant consulted with legal counsel on 29 November 1973.

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 a 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 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 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 was advised he could submit any statements he desired in his behalf.  Heelected not to submit a statement. 

7.The applicant's immediate and intermediate commanders recommended disapprovalof the request for separation under the provisions of Army Regulation 635-200,Chapter 10, and further recommended that he appear before a special court-martial witha bad conduct discharge due to the serious nature of the alleged offenses against him.

8.The separation authority approved the applicant's request for discharge on17 December 1973, under the provisions of Army Regulation 635-200, Chapter 10, forthe good of the service, and directed the applicant's reduction to the lowest enlistedgrade and his discharge with a DD Form 258A (Undesirable Discharge Certificate).

9.The applicant was discharged on 2 Jan 1974, under the provisions of ArmyRegulation 635-200, Chapter 10.  The DD Form 214 (Armed Forces of the UnitedStates Report of Transfer or Discharge) he was issued confirms his service wascharacterized as UOTHC.

10.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.

11.The Board should consider the applicant's statement and provided evidence inaccordance 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 forconsideration 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 the facts presented above. 



2.The Board noted that he had legal counsel, that he voluntarily requested dischargeunder the provision of Chapter 10, in lieu of trial by court-martial, that he declined tosubmit a statement in his defense, that he acknowledged his understanding that byrequesting discharge, that he was admitting guilt to the charge against him, or of alesser included offense that also authorized the imposition of a bad conduct ordishonorable discharge, and that he could receive a discharge under other thanhonorable conditions.3.The Board found insufficient evidence of in-service mitigation to overcome theapplicant's serious misconduct.  The Board acknowledged his statement, but found insufficient supporting evidence of post-service achievements or letters of reference tojustify a clemency determination.  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, and that relief is 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. 


XCHAIRPERSON


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 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.  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. 
 
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