BOARD DATE: 4 September 2020 DOCKET NUMBER: AR20190014161 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 of the United States), dated 1 November 2019 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 is trying to better his life. He registered for Selective Service on his 18th birthday, in Covington, Louisiana. It was the law. His mother was dying and someone needed to take care of her. She lived alone. All he asked was to be with her until she died. She died in November 1983. All the documents were destroyed in 1993; all social security, hospital records, everything he tried to find. 3. The applicant enlisted in the Regular Army on 24 February 1977. 4. The applicant accepted non-judicial punishment (NJP) on 6 July 1977, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit, without authority, from on or about 30 June 1977 through on or about 3 July 1977; being drunk and disorderly in quarters, on or about 3 July 1977; wrongfully urinating on the dayroom floor and inside a locker, on or about 3 July 1977; and for absenting himself from his unit, without authority, from on or about 3 July 1977 through on or about 5 July 1977. 5. The applicant accepted NJP on 5 May 1978, under the provisions of Article 15 of the UCMJ, for failing to go at the prescribed time to his appointed place of duty, on or about 30 October 1978. 6. The applicant underwent a medical examination on 18 January 1979. The relevant Standard Form (SF) 93 (Report of Medical History), located in the applicant's service record, shows he reported being in good health. The corresponding SF 88 (Report of Medical Examination) shows he was medically qualified for separation. 7. The applicant underwent a mental status evaluation on 19 January 1979. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows: * his behavior was normal * he was fully alert and fully oriented * his mood was level * his thinking process was clear with normal thought content * his memory was good * he had the mental capacity to understand and participate in proceedings; he was mentally responsible; and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 * there were no additional remarks noted 8. Court-martial charges were preferred against the applicant on 22 January 1979, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with being absent from his organization without authority (absent without leave (AWOL)), from on or about 31 October 1978 through on or about 9 January 1979. 9. The applicant consulted with legal counsel on 23 January 1979. 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 a 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 was advised he could submit any statements he desired in his behalf. He did not submit a statement. 10. The applicant's service record contains handwritten notes attached to his request for discharge for the good of the service. It is unclear who authored the notes. The notes provide details regarding his period of AWOL, attitude towards the military and background as follows: a. The service member went AWOL due to alleged apathy on the part of his chain of command in response to his request for a hardship discharge. His mother is currently hospitalized. He has a brother at home who has been declared mentally incompetent. b. The service member's attitude is set, and it is unlikely he will change his mind. He has had other problems with bureaucratic inefficiencies. He had his teeth pulled and received no dentures for a very long time (still has not received). c. The service member's background reflects that he does not relate well in a structured environment. He claims five Article 15 proceedings and described them spontaneously and in detail, lending truth to his claim. He claims he failed ninth grade five times, and attributes his involvement with marijuana and the resulting apathetic attitude as the cause. 11. The applicant's immediate commander recommended approval of the applicant's request for discharge in lieu of trial by court-martial. The separation authority approved the applicant's request for discharge on 6 February 1979, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service and directed he be reduced to the lowest enlisted grade and be issued a DD Form 794A (UOTHC Discharge Certificate). 12. The applicant was discharged on 13 February 1979, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 13. 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. 14. The Board should consider the applicant's statement and provided evidence 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 Department of Defense 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, 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. 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) AR20190014161 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014161 6 ABCMR Record of Proceedings (cont) AR20190014161 5