IN THE CASE OF: BOARD DATE: 27 January 2020 DOCKET NUMBER: AR20190012236 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) 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 21 June 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 15 June 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 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 hospitalized for three or four days after being assaulted while on active duty. He was frightened to return to his unit after being discharged from the hospital. While recovering, he was involved in an automobile accident with an Army vehicle. He was offered a discharge in lieu of court-martial, he had no council or help so he took the discharge. He has had mental and physical health issues since his discharge. He would like to use the Department of Veterans Affairs (VA) healthcare system. 3. The applicant enlisted in the Regular Army on 21 April 1981. 4. The applicant accepted non-judicial punishment on 18 December 1981, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failure to report at the time prescribed to his appointed place of duty, on or about 4 December 1981, and for willfully disobeying a lawful order, on or about 4 December 1981. 5. Court-martial charges were preferred against the applicant on 26 March 1982, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with: * operating a privately owned vehicle without a valid operator’s license, on or about 21 October 1981 * wrongfully operating a vehicle while drunk, on or about 21 October 1981 * two specifications of wrongful appropriation of a cargo truck and a 4x4 ton cargo truck, the property of the Government, on or about 12 December 1981 * two specifications of damage to a 4x4 ton cargo truck and gas pumps, on or about 12 December 1981 * wrongfully and unlawfully leaving the scene of a collision without making his identity known, on or about 12 December 1981 6. The applicant consulted with legal counsel on 30 March 1982. 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 an UOTHC 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 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 to submit a statement in his own behalf; however, his statement is not available for review. 7. The separation authority approved the applicant's request for discharge on 24 May 1982, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service and directed the issuance of an UOTHC discharge. 8. The applicant was discharged on 15 June 1982, under the provisions of Army Regulation 635-200, Chapter 10, for conduct triable by court-martial. The DD Form 214 he was issued shows he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 9. 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. 10. The Army Discharge Review Board (ADRB) considered the applicant's request for a discharge upgrade on 2 December 1985. After careful consideration, the ADRB determined he was properly and equitably discharged and denied his petition for relief. 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, 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, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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// ABCMR Record of Proceedings (cont) AR20190012236 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012236 5 ABCMR Record of Proceedings (cont) AR20190012236 4