IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20190015148 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. He also requests an opportunity to personally appear before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 214 (Report of Separation from Active Duty) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Clinical Record Cover Sheet * Separation Documents * Honorable Discharge Certificates (x2) * UOTHC Discharge Certificate * High School Diploma * Applicant’s Grandmother’s letter written to his Senator * Applicant’s Letter to the President 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 (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 when he was assigned to Germany he held the rank of sergeant (SGT), pay grade E-5, and he was on the promotion list for staff sergeant (SSG)/E-6. When he arrived, they could not find the paperwork, but he was put in an E-6 slot. In 1981 he was young and he was railroaded and rushed into signing statements that were not true. He states he served his country proudly and honorably and he believes he can provide the Board answers that will prove he was falsely accused and railroaded. 3. Additionally, he states that if anything should happen to him, his wife or his son should be allowed to continue his request. 4. The applicant served in honorably in an active duty status in the: * Army National Guard from 6 October 1972 to 30 June 1973 * Regular Army (RA) from 9 October 1973 to 16 September 1976 5. On 17 September 1976, at age 26, the applicant reenlisted in the RA for 6 years, in pay grade E-4. He held military occupational specialty 98B (Medical Specialist). 6. The applicant’s Personnel Qualification Record shows he was absent without leave (AWOL) from 26 to 27 August 1974 and from 7 to 9 March 1975. No further information concerning these offenses is available. 7. On 10 August 1977, he was promoted to the rank of specialist five (SP5). This is the highest rank that he held and there is no evidence available to show that he was on an E-6 promotion list. On 29 May 1979, he was assigned to Germany. 8. The applicant’s Charge Sheet is not in the available record. However, the available record does contain a document that shows he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him. The specific offense cited on his request for discharge are two specifications of making a false official statement and presenting a false claim. Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He declined to submit statements in his own behalf. He authenticated this document with his signature. 9. On 6 January 1981, the applicant’s commander recommended approval of the applicant’s request with an UOTHC discharge. The commander stated the applicant had been administered two Article 15's on 9 November 1979 and 16 October 1980, for failure to repair, both punishments included 14 days of restriction and extra duty. He was pending a special court-martial empowered to adjudge a bad conduct discharge. The convening date was 15 January 1981. His pending charges included two counts of making a false official statement and one count of presenting a false claim. 10. On 6 January 1981, the applicant's intermediate commander recommended approval of the applicant’s request with the issuance of an UOTHC discharge. 11. On 14 January 1981, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200, with an UOTHC discharge, and reduction to the lowest enlisted grade. On 13 February 1981, at age 30, he was discharged accordingly. 12. On 24 June 1994, the Army Discharge Review Board denied his petition to upgrade his discharge, determining the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of his records. 13. His DD Form 214 shows he received an administrative discharge for conduct triable by court-martial with a characterization of service of UOTHC. He completed 4 years, 4 months, and 27 days of total active service during this period and 3 years, 8 months, and 3 days of prior active service. 14. Chapter 10, AR 635-200 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. Although an honorable or general discharge is authorized, an UOTHC discharge is normally considered appropriate. 15. AR 15-185 (ABCMR), paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 16. The applicant provides: a. A letter from his grandmother that was written to his Senator stating the applicant felt mistreated, betrayed, and disillusioned as a result of the treatment he received from the Government and he needed the Senator's help. b. A letter written to the President, in which he states he was serving in Germany when his service was interrupted by accusations concerning a mishandled matter. After a hearing of the matter in a trial process, he was found not guilty and he complied with everything to help clear-up the matter. But he was unjustly railroaded out of the Army with a less than honorable status. He requested that he be given the opportunity to be restored to his original military status. c. A Clinical Record Coversheet showing he was involved in a motor vehicle accident on 1 January 1979. His left zygomatic and orbital floor blowout fracture was repaired under general anesthesia on 3 January 1979. He was put on convalescent leave from 8-28 February 1979. There is no further information concerning the disposition of this injury. 17. The applicant contends he was assigned to Germany, in the rank of SGT/E-5, and he was on the promotion list for SSG/E-6. They could not find the paperwork, but he was put in an E-6 slot. In 1981 he was young and he was railroaded and rushed into signing statements that were not true. He believes he served his country proudly and honorably and he can provide answers to the Board that will prove he was falsely accused and railroaded. 18. The available evidence shows, at age 30, he was given due process, and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial to avoid a possible felony conviction and jail time. 19. In regards to the applicant's request for a personal appearance, AR 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 20. In reaching its determination, the Board can consider the applicant’s petition, his submissions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board determined the available records are sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, 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 : : : 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 15-185 (ABCMR) states: a. Applicant’s do not have a right to a formal hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. b. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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, an UOTHC discharge is normally considered appropriate. b. 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. c. 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. 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 based on 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) AR20190015148 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190015148 6 ABCMR Record of Proceedings (cont) AR20190015148 5