BOARD DATE: 10 April 2020 DOCKET NUMBER: AR20200000811 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20060010791 on 6 February 2007. Specifically, he requests 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 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 23 July 2019 * Patient Demographic Data Screen Sheets, dated 29 March 2017 * Character Reference Letter, Penn Center for Community Health Workers, dated 27 June 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 AR20060010791 on 6 February 2007. 2. The applicant states he was twice assigned to Germany, with previous deployments. 3. The applicant initially enlisted in the U.S. Army Reserve (USAR) on 4 September 1974. He was trained in, awarded, and served in military occupational specialty (MOS) 94B (Food Service Specialist). 4. The applicant was ordered to active duty on 10 March 1977, for a period of 19 months and eight days. 5. The applicant served in the Federal Republic of Germany from 4 April 1977 through 20 October 1978. 6. The applicant enlisted in the Regular Army on 11 May 1978. 7. The applicant began a second period of overseas service, in the Federal Republic of Germany, on 17 December 1979. 8. The applicant reenlisted in the Regular Army on 26 February 1980. 9. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 19 June 1980, for without authority, absenting himself from his place of duty, from on or about 0400 hours to on or about 0700 hours, on 10 June 1980 * on 21 July 1980, for without authority, failing to go at the time prescribed to his appointed place of duty, on or about 11 July 1980 10. The applicant reenlisted in the Regular Army on 4 January 1983 and was promoted to the rank/grade of specialist five (SP5)/E-5 effective 4 February 1983. 11. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the UCMJ, on the following dates for the indicated offenses: * on 17 April 1984, for being derelict in the performance of his duties, in that he negligently failed to perform his duties as shift leader by leaving the dining facility unsecure and in the control of civilians, on or about 29 March 1984 * on 14 August 1984, for without authority, failing to go at the time prescribed to his appointed place of duty, on or about 17 July 1984 12. Court-martial charges were preferred against the applicant on 5 April 1985 for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about 12 October 1984 through on or about 3 April 1985. 13. The applicant consulted with counsel on 5 April 1985. 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 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 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. He declined to submit a statement in his own behalf. 14. The separation authority approved the applicant's request for discharge on 13 May 1985, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and that he be issued a DD Form 794A (UOTHC Certificate). 15. The applicant was discharged on 6 June 1985 under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. His DD Form 214 further shows he was awarded two Army Good Conduct Medals. 16. 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. 17. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his service characterization. The ADRB considered his request on 28 August 1986, determined he was properly discharged, and denied his request for relief. 18. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 6 February 2007, determined he was properly discharged, and denied his request for relief. 19. The applicant provides a character reference letter from A.Q. Dxxxx, who is his mentor. Mr. Dxxxx attests to the applicant's strength of character and positive work ethic. 20. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that partial relief was warranted. The Board carefully considered the applicants 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 reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided insufficient evidence of post-service achievements to support 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. The Board concurred with the corrections stated in the Administrative Note(s) below regarding a period of Continuous Honorable Service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected as shown in the Administrative Note(s) that follow. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to amending the decision of the ABCMR set forth in Docket Number AR20060010791 on 6 February 2007 pertaining to the character of service the applicant received at separation. 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): A review of the applicant's record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 6 June 1985, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by deleting from item 18 (Remarks) the entry "IMMEDIATE REENLISTMENT THIS PERIOD: 780511-800225" and adding to item 18 the entries: - IMMEDIATE REENLISTMENTS THIS PERIOD: 780511-800225 and 800226- 830103 - SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE - CONTINUOUS HONORABLE ACTIVE SERVICE FROM 780511 UNTIL 830103 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) AR20200000811 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000811 7 ABCMR Record of Proceedings (cont) AR20200000811 5