IN THE CASE OF: BOARD DATE: 6 April 2020 DOCKET NUMBER: AR20200000831 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 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), undated * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 11 July 2019 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 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, in effect, a. He read letters sent to him regarding his service from 7 October 1979 through 6 December 1983, which made him out to be a very bad Soldier. He spent three years in Germany and had a pot belly stove blow up in his face. He took action and did what he did at the North Atlantic Treaty Organization (NATO) gun range, which saved a lot of lives. He suffered second degrees burns to his face; documentation can be found in his medical records. He was absent without leave (AWOL) because he was told by his unit to go home to Southern California and take care of things with his wife. He called his unit weekly and provided them with updates to his situation. He returned to his unit and was asked to report to Fort Ord, California, where he was discharged for no reason. b. He had an altercation with another Soldier when he was in Germany, for sleeping with his wife. He struck another Soldier because he pulled a knife on him; there are also records of that. He was stationed in Ausburg, where he slipped off tanks more times that he can remember. He was young and could take it. He also had a M60 radio fall on his head. He had a disc in his neck removed and it was replaced with a plate. He has dementia, memory loss and the Doctor’s cannot figure out what is wrong with the back of his head. 3. The applicant enlisted in the Regular Army on 28 February 1978. 4. 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 11 February 1981, for unlawfully striking a noncommissioned officer (NCO) in the face with a closed fist, on or about 1 January 1981 * on 25 January 1982, being AWOL from on or about 22 December 1981 through on or about 28 December 1981 * on 20 September 1982, being AWOL from on or about 24 August 1982 through on or about 25 August 1982 5. The applicant was formally counseled on seven separate occasions between 2 June 1982 and 23 September 1982, for reasons including but not limited to: * initial counseling on military appearance * failure to report to numerous formations * physically pushing another soldier * having possession of two unregistered knives * dishonored check cashing 6. A letter of reprimand was issued from the Commander, Armor Company C, Experimentation Support Command, U.S. Army Combat Developments Experimentation Command, Fort Hunter Liggett, California. The applicant struck another Soldier on 11 June 1982 in the eye, which resulted in the Soldier requiring medical treatment. 7. Court-martial charges were preferred against the applicant on 30 September 1983, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 21 January 1983 through on or about 27 September 1983. 8. The applicant consulted with legal counsel on or about 30 September 1983. 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 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, 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 any statements in his own behalf. 9. The separation authority approved the applicant's request for discharge on 18 November 1983, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of court-martial, and directed his reduction to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 10. The applicant was discharged on 6 December 1983, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court- martial. The DD Form 214 he was issued 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 the Army Good Conduct Medal. 11. 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. 12. 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 relief was not 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 preferred charges, his request for discharge and the reason for his separation. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh 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 : 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 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 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) AR20200000831 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 1