IN THE CASE OF: BOARD DATE: 21 August 2020 DOCKET NUMBER: AR20190015027 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20170001308 on 3 May 2019. In effect, he requests his service characterization, previously upgraded from under other than honorable conditions (UOTHC) to under honorable conditions (general), be further upgraded to honorable. As a new issue, he requests retroactive payment for his service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-Authored Statement, dated 14 October 2019 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20170001308 on 3 May 2019. 2. The applicant states: a. He is thankful for the portion of his application that was upgraded but he is still in the same situation that he was in. He was stationed at Fort Benning, GA, for two months and was not getting paid. That is part of the reason he did not return to Germany. He could not feed his family. b. He was born and raised on a farm; his parents were farm workers. He wanted a better life and thought if he joined the Army that could happen but it did not. His pay was $400 a month, until this day he has received nothing and it took almost 40 years to upgrade his discharge. He will not live another 40 years to get the pay that he is owed. He requested his Leave and Earnings Statement (LES) but was told there was no record. They want him to prove his pay record but how can he when the Army doesn’t have them. c. He had a back injury when he was there and he is now disabled; he is not saying it was all the Army’s fault. He can’t work anymore because of his back injury and legs. All he receives is disability from supplemental security income. He would really like to receive the pay that he deserves, he always showed up for work even when he did not get paid. 3. The applicant enlisted in the Regular Army on 3 January 1979. 4. Court-martial charges were preferred against the applicant on 14 November 1979, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being absent without leave on or about 1 November 1979, and for disobeying a lawful order to proceed back to his parent unit on or about 3 November 1979. 5. The applicant consulted with legal counsel on 14 November 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 an under other than honorable conditions (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 Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He elected not to submit a statement in his own behalf. 6. The separation authority approved the applicant's request for discharge on 3 January 1980, under the provisions of Army Regulation 635-200, Chapter 10, and directed his reduction to the lowest enlisted grade and the issuance of an UOTHC discharge. 7. The applicant was discharged on 15 January 1980, under the provisions of Army Regulation 635-200, Chapter 10, for conduct triable by court-martial. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 8. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 9. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB considered his petition on 9 November 1984, determined he was properly and equitably discharged, and denied his petition for relief. 10. The applicant applied to the ABCMR for an upgrade of his discharge on 27 November 2016. The Board considered his application on 3 May 2019 and directed that his discharge be upgraded to under honorable conditions (general). Accordingly, he was issued a new DD Form 214, which shows his service was characterized as under honorable conditions (general). Item 18 (Remarks) contains the entry "Service Characterization Upgraded per ABCMR Proceedings AR20170001308 on 20190510 following Application dated 20161127." 11. As new evidence or argument that was not considered by the Board, the applicant contends he was stationed at Fort Benning, GA, for two months and was not getting paid. That is part of the reason he did not return to Germany when ordered. He would like to receive the pay he is owed. 12. The applicant's finance records are not available for review. 13. The Board should consider the applicant's statement and overall record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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 beyond the clemency he has already received by virtue of the upgrade of his character of service to under honorable conditions (general). Based on a preponderance of evidence, the Board determined that the character of service the applicant currently has as a result of the Board's previous determination is not in error or unjust. 2. The Board further determined that the available records are insufficient to corroborate the applicant's claim that he was not paid for two months. As such, the Board determined there is no basis for relief on this issue. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20170001308 on 3 May 2019. 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 states 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. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was 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) AR20190015027 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190015027 6 ABCMR Record of Proceedings (cont) AR20190015027 5