IN THE CASE OF: BOARD DATE: 9 March 2020 DOCKET NUMBER: AR20190014572 APPLICANT REQUESTS: The applicant requests that his under other than honorable conditions (UOTHC) discharge be upgraded to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 served his country for 5 years and he deserves an honorable discharge. 3. The applicant served honorably in the Regular Army (RA) from 16 November 1971 to 28 November 1973. He held military occupational specialist (MOS) 12D (Powered Bridge Specialist). 4. On 29 November 1973, the applicant reenlisted in the RA for 4 years; for his present duty assignment Company E, 12th, Engineer Battalion, Germany; in MOS 12D; and in pay grade E-3. 5. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on: a. 16 May 1973, for absenting himself from his place of duty from 2300 hours to 2330 hours on 6 May 1973 and for absenting himself from his place of duty from 0230 hours to 0400 hours on 7 May 1973. His punishment consisted of reduction from pay grade E-3 to E-2 and 14 days of extra duty. b. 11 April 1974, for leaving his unit in an absent without leave (AWOL) status from 3 to 9 March 1974. His punishment consisted of reduction from pay grade E-3 to E-2 and a forfeiture of pay. c. 8 July 1974, for being disrespectful in language toward a noncommissioned officer by using profanity toward him while assigned to Fort Hood, TX. His punishment consisted of reduction from pay grade E-2 to E-1, a forfeiture of pay, restriction, and extra duty. 6. Summary Court-Martial Order 25 shows, on 7 October 1974, the applicant was convicted of being AWOL from his unit from 26 to 27 August 1974. He was sentenced to a forfeiture of pay and restriction. 7. On 25 October 1974, a Bar to Reenlistment Certificate was initiated against the applicant for unsatisfactory conduct, specifically for the above summary court-martial action and AWOL offenses. He had been a member of the unit since 23 May 1974. He should be barred from reenlistment because of his inability to accept the orders of those appointed over him. He was constantly late, AWOL, disrespectful toward superiors, and habitually fighting with his contemporaries. a. He been a problem for both his contemporaries and superiors since his arrival in this unit. * Seven days after his arrival in the unit he engaged in a fist fight with another private. * On 18 June 1974, he caused another altercation on top of an APC while in the field. * On 30 July 1974, he engaged in a fist fight with another private. b. These incidents were typical of the bursts of temper that he seemed to subject to. His hostile attitude made him an unwelcome member of both platoons to which he had been assigned and he contributed to unrest in both rooms in which he had lived. Constant counseling by the chain of command had little or no effect. a. Not only did he fail to get along with his contemporaries, he could not follow directions. On 27 June 1974, after being lawfully ordered out of another platoon’s room, he called the staff sergeant an obscene name. While being counseled by his platoon leader, he walked out and said he did not want to hear any more "bull…..” b. On 23 August 1974, he refused to obey his assistant squad leader’s orders and gave him extremely smart replies . On 29 August 1974, he repeated the previous incident and threatened the assistant squad leader with a pair of sticks. On 21 October 1974, he refused to obey an order from his squad leader and told the squad leader to kiss his “a…” Such incidents are extremely prejudicial to the good order and discipline of the unit and show a blatant disregard for authority. He was habitually AWOL and constantly arrived late to formation, creating three day weekends because his car broke down. c. He declared during a counseling session that he was going to continue behaving in the described manner until he leaves the service. d. The commander stated, he could not in good faith allow the applicant to continue his service beyond his current enlistment. His activities had resulted in him being considered for elimination under AR 635-20, Chapter 13, pending the results of a psychiatric evaluation. The applicant had failed his obligation as a Soldier in the United States Army. His activities resulted in a disproportionate amount of time being expended by his superiors with no apparent results. The applicant did not respond to counseling and a rehabilitative transfer to another platoon did not help. 8. He accepted NJP under Article 15, UCMJ on: a. 7 November 1974, for being AWOL from his unit from 2 to 5 November 1974. His punishment consisted of a forfeiture of pay and extra duty. b. 17 December 1974, for failure to go to his appointed place of duty at the time prescribed on 9 December 1974. His punishment consisted of a forfeiture of pay. c. 24 January 1975, for being AWOL from his unit from 20 to 22 January 1975. His punishment consisted of a forfeiture of pay, restriction, and extra duty. 9. Summary Court-Martial Order 10 shows, on 18 March 1975, the applicant was convicted of being AWOL from his unit from 3 to 25 August 1975. He was sentenced to reduction to pay grade E-1, to perform hard labor without confinement for 40 days, and a forfeiture of pay. 10. A Charge Sheet, dated 9 April 1975, shows he was charged with failure to go to his appointed place of duty at the time prescribed on 30 March 1975 and with being AWOL from 5 to 8 April 1975. 11. On 15 April 1975, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He consulted with legal counsel and was advised of the basis for the trial by court- martial, his available rights, and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10. He signed a request for discharge for the Good of the Service and indicated he would submit statements in his own behalf, which is not in the available record. 12. On 15 April 1975, the applicant’s immediate commander recommended approval of his request with an Undesirable Discharge Certificate. 13. On 21 April 1975, a medical evaluation shows he was determined to be qualified for separation. On the same date he was psychiatrically determined to meet retention standards under the provisions of Chapter 3, AR 40-501. 14. On 21 April 1975, the applicant’s intermediate commander recommended approval of his request with the issuance of an Undesirable Discharge Certificate. 15. On 23 April 1975, the appropriate approval authority approved the applicant’s request for discharge for the good of the service and directed that he be furnished an Undesirable Discharge Certificate. 16. On 12 May 1975, he was discharged accordingly; his DD Form 214 shows he completed 1 year, 3 months, and 27 days of net active service with 46 days of lost time. He also had 2 years and 11 days of prior active service. Additionally, his DD Form 214 shows: * Character of Service: “Under Other Than Honorable Conditions” * Separation Authority: AR 635-200, Chapter 10 * Separation Code: KFS * Narrative Reason for Separation: “Conduct Triable by Court-Martial” 17. Army Regulation 635-200 states a discharge under the provisions of chapter 10 is a voluntary discharge request in-lieu of trial by court martial. In a case in which an UOTHC discharge is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 18. On 13 February 1985, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable. The ADRB unanimously voted to deny him a change in the character of service and the reason for discharge. 19. Regarding his contention that he served his country for 5 years and he deserves an honorable discharge. His service record shows he completed 2 years and 11 days of honorable RA service from 16 November 1971 to 28 November 1973 and he was issued a DD Form 214. He reenlisted and completed 1 year, 3 months, and 27 days of net active service from 29 November 1973 to 19 March 1975 with 46 days of lost time. During this period of service he committed various misconduct to include numerous periods of AWOL. He received six NJP’s and two court-martial actions. This period of service is characterized as under other than honorable conditions. 20. In reaching its determination, the Board can consider the applicant's petition, and his service record in light of the published Department of Defense 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, courts- martial actions, 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 Army Board for Correction of Military Records (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. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an UOTHC discharge was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, BCM/NRs 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) AR20190014572 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014572 7 ABCMR Record of Proceedings (cont) AR20190014572 6