ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings  IN THE CASE OF:    BOARD DATE:  11 June 2020 DOCKET NUMBER:  AR20190014623 


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 293 (Application for the Review of Discharge from the Armed Forces ofthe United States), dated 30 October 2019

.DD Form 214 (Report of Separation from Active Duty), for the period ending11 April 1974



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states he was not afforded due process regarding his alleged violationof the Uniform Code of Military Justice (UCMJ).  He was treated unfairly by his superiorofficers due to his race.

3.The applicant enlisted in the Regular Army on 4 August 1972.

4.The applicant accepted nonjudicial punishment (NJP) on 8 June 1973, under theprovisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for possessingmarijuana, on or about 5 June 1973.

5.Special Court-Martial Order Number 9, issued by Headquarters, 1st Battalion, 44thAir Defense Artillery Regiment on 21 December 1973, shows the applicant was foundguilty of the following infractions:

a.being absent without leave (AWOL), from on or about 6 June 1973 through on orabout 9 June 1973; 

b.failing to go at the prescribed time to his appointed place of duty, on or about0900 hours, 21 July 1973; 

c.being AWOL, from on or about 2 August 1973 to on or about 14 August 1973;

d.being AWOL, from on or about 1300 hours, 27 August 1973 to on or about 1910,27 August 1973; 

e.being AWOL, from on or about 1500 hours, 28 August 1973 to on or about 1240,29 August 1973; 

f.willfully disobeying a lawful order from a commissioned officer, on or about1100 hours, 11 June 1973; and, 

g.using disrespectful language toward a noncommissioned office in the executionof his office, on or about 1415 hours, 27 August 1973. 

6.Court-martial charges were preferred against the applicant on 22 March 1974, forviolations of the UCMJ.  The relevant DD Form 458 (Charge Sheet) shows he wascharged with being AWOL from on or about 11 December 1973 through on or about22 February 1974.

7.The applicant consulted with legal counsel on 27 March 1974.

a.He was advised of the basis for the contemplated trial by court-martial, themaximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him.   

b.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge 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 Veterans Administration, 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 own behalf.His request for discharge indicates he submitted a statement; however, it is not available for review. 
8.The separation authority approved the applicant's request for discharge on 3 April1974, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial bycourt-martial, and directed that the applicant be reduced to the lowest enlisted gradeand discharged with an undesirable discharge [certificate].

9.The applicant was discharged on 11 April 1974.  The DD Form 214 he was issuedshows he was discharged under the provisions of Army Regulation 635-200, Chapter10, for the good of the service, and his service was characterized as UOTHC.  HisDD Form 214 confirms he was discharged in the lowest enlisted grade and he wasissued a DD Form 258A (Undesirable Discharge Certificate).

10.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial.

11.The Army Discharge Review Board denied the applicant's request for an upgradeon 9 September 1975 and again on 26 February 1982.

12.The applicant's record documents no acts of valor, significant achievement, orservice warranting special recognition.

13.The applicant has not provided and the record does not contain any evidence thathe was treated differently than any other Soldier committing the same offenses due tohis race or that there were any due processing violations in the charges that led to hisseparation.

14.The Board should consider the applicant's petition, his service record, and hisstatements 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 dischargeupgrade requests.  The Board considered the applicant’s statement, his record ofservice, the frequency and nature of his misconduct and the reason for his separation.The Board found insufficient evidence of in-service mitigating factors to overcome themisconduct and the applicant provided no evidence of post-service achievements orletters of reference in support of a clemency determination.  Based on a preponderanceof evidence, the Board determined that the character of service the applicant receivedupon separation was not in error or unjust.

2.After reviewing the application and all supporting documents, the Board found reliefwas not warranted.

BOARD VOTE:

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XX :XXX 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. 



X 


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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection 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 thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

3.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  It provides:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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. 

c.Chapter 10 provides that a member who has committed an offense or offensesfor 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. 

4.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemencygenerally 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. 
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