BOARD DATE: 13 March 2020 DOCKET NUMBER: AR20190012576 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 28 August 2019 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 4 June 1970 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 there is no justifiable reason for which he should have received an undesirable discharge. He did not have the opportunity to refuse this type of discharge and was not told until after he had signed the separation that his service would be characterized as UOTHC. His actions and character were within the scope of the military standards for an honorable discharge. 3. The applicant enlisted in the Regular Army on 28 April 1969. 4. Before a special court-martial on or about 31 July 1969, at Fort Campbell, KY, the applicant was found guilty of being absent without leave (AWOL), from on or about 1 June 1969 through on or about 17 July 1969. 5. Before a special court-martial on or about 13 March 1970, at, the applicant was found guilty of three specifications of assaulting fellow Soldiers, on or about 1 March 1970. 6. A bar to reenlistment was initiated on 27 March 1970 based on the applicant's NJP, two special court-martials, and references to additional misconduct of disobeying a lawful order from a noncommissioned officer, signing a false official document, and additional assault charge. 7. The applicant received nonjudicial punishment (NJP) on 17 April 1970, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for assaulting, in conjunction with other prisoners, a fellow Soldier, on or about 11 April 1970. 8. The applicant was afforded a mental hygiene assessment on 8 May 1970 that found no conditions that warranted processing though medical channels. He was cleared for any administrative action deemed appropriate by his command. 9. The applicant's commander notified the applicant on 10 May 1970 of his intent to initiate actions to separate the applicant under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness. The applicant acknowledged receipt of the notification on the same date. 10. The applicant consulted with legal counsel on 12 May 1970. a. He was advised of the basis for the contemplated separation and his rights to have his case reviewed by a board of officers, to a personal appearance, to further representation by counsel, and to provide a statement on his own behalf. b. He acknowledged his understanding that he may expect to encounter substantial prejudice in civilian life in the event he received a discharge under other than an honorable discharge. He further acknowledged he understood that if received a UD he could be deprived of many or all benefits under both Federal and State laws. 11. The applicant's unit commander formally recommended, on 12 May 1970, the applicant's separation from service under the provisions of Army Regulation 635-212, by reason of unfitness. The commander further recommended a waiver of counseling and rehabilitation requirements. 12. The separation authority approved the recommendation for the applicant's discharge on 1 June 1970, under the provisions of Army Regulation 635-212, waived further counseling and rehabilitation requirements, and directed the applicant receive a DD Form 258A (Undesirable Discharge Certificate). 13. The applicant was discharged on 4 June 1970. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-212 with a service characterization of UOTHC. His DD Form 214 further shows he was issued an Undesirable Discharge Certificate. 14. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 15. The Army Discharge Review Board denied the applicant's request for an upgrade on 15 December 1982. 16. The Board may consider the applicant's petition, his service record, and his statements 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 discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, a bar to reenlistment, the separation packet and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 15-185 (ABCMR) prescribes the policies and procedures for correction 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 the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. 4. Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness and unsuitability. It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: * frequent incidents of a discreditable nature with civil or military authorities * sexual perversion * drug addiction * an established pattern of shirking * an established pattern showing dishonorable failure to pay just debts This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 5. 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) AR20190012576 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012576 6 ABCMR Record of Proceedings (cont) AR20190012576 4