IN THE CASE OF: BOARD DATE: 9 March 2020 DOCKET NUMBER: AR20190014427 APPLICANT REQUESTS: in effect, that 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 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 20 August 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: a. He cannot change his past behavior. He was young, stupid and made a lot of regretful decisions. He was only 17 or 18 years old and came under the influence of someone who was not in the Army. The two lived together off post. He picked the wrong person as a mentor and believed what this person said was gospel. He was unaware this individual was running from the law in Indiana. This person convinced him to leave. b. He was absent without leave (AWOL) for approximately three months. He would like to have had another chance at proving himself to the Army. The decision seemed to already be made before his trial even started. He would have liked to return to the Army but after speaking with representation, he chose the discharge. c. He is profoundly sorry for what he did and the actions he took. As he has aged, he has realized the major implications his actions as a young man have had on his civilian life. 3. The applicant enlisted in the Regular Army on 26 June 1972. Upon completion of his initial entry training, he was assigned to the 2nd Armored Division at Fort Hood, TX. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on two occasions: * on 17 May 1973, for being AWOL, from on or about 20 April 1973 through on or about 11 May 1973 * on 7 August 1973, for resisting lawful apprehension by the Military Police, on or about 2 June 1973; for failing to obey a lawful order, on or about 13 July 1973; and for failing to go at prescribed time to appointed place of duty, on or about 2 August 1973 5. Court-martial charges were preferred against the applicant on 30 January 1974 for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL, from on or about 31 October 1973 through on or about 23 January 1974. 6. The applicant consulted with legal counsel on or about 30 January 1974. 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 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. In a provided statement, he noted that Army pay was not sufficient enough for him to meet his financial obligations while also trying to support his mother. During the time he was AWOL he was able to make enough to live. The Army was not doing him any good, and he hated the Army. 7. The applicant's immediate and intermediate commanders recommended approval of the request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. His commander noted that based upon the applicant's statements, demeanor, and attitude, any further disciplinary or rehabilitative action would be futile. He further recommended that the applicant be issued an undesirable discharge. 8. The applicant underwent a medical examination on 30 January 1974. The relevant Standard Form (SF) 88 (Report of Medical Examination) indicates he was medically qualified for separation. 9. The separation authority approved the applicant's request for discharge on 12 February 1974, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 10. The applicant was discharged on 15 February 1974, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms his service was characterized as UOTHC. 11. 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. 12. The Army Discharge Review Board (ADRB) reviewed the applicant's discharge on or about 10 September 1981, determined it was proper and denied his request for an upgrade. 13. The Board should consider the applicant's statement and provided evidence 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 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 charges against him, his request for discharge 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 : : : 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 3-7a 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) AR20190014427 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014427 6 ABCMR Record of Proceedings (cont) AR20190014427 5