IN THE CASE OF: . BOARD DATE: 15 April 2021 DOCKET NUMBER: AR20210005618 APPLICANT REQUESTS: * reconsideration of his request to upgrade his under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record). FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC98-12424 on 6 January 1999. 2. The applicant states he was not treated fairly or equally as a service member or a human being. 3. On 11 January 1971, he was inducted in the Army of the United States at the age of 19 years old and. 4. He was assigned to Fort Lewis, WA, for basic combat training (BCT). On 2 March 1971, he accepted nonjudicial punishment (NJP) for failing to obey an order from the training officer to go through the CBR (chemical, biological, and radiological) course. His punishment consisted of forfeiture of $25.00 pay, 14 days’ extra duty, and 14 days’ restriction. 5. After completing BCT, he was assigned to Fort Benning, GA, for advanced individual training (AIT). On 2 June 1971, he accepted NJP for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of forfeiture of $25.00 pay. 6. On 14 June 1971, the applicant went AWOL and remained absent until 14 July 1971 and on 25 July 1971 and remained absent until 28 July 1971. He was reassigned to the U.S. Army Personnel Control Facility, Fort Riley, KS. On 3 August 1971, he accepted NJP for the two offenses of being AWOL. His punishment consisted of forfeiture of $75.00 pay for two months. 7. On 20 August 1971, he went AWOL; on 17 September 1971, he was dropped from the rolls; and on 3 January 1972, he returned to military control (136 days). On 7 January 1972, court-martial charges were preferred against the applicant for the offense. 8. The applicant underwent a separation medical examination in connection with his pending separation. The applicant indicated he was in good condition and he had various medical issues to include frequent trouble sleeping, depression or excessive worry, and nervous trouble. The examiner determined his clinical evaluation was normal. The examiner noted a urine specimen was collected in connection with the drug abuse program, otherwise the evaluation was unremarkable. The examiner qualified him for separation. 9. The applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10, and he elected not to submit a statement on his own behalf. Counsel also advised him that if he was a drug user, he could participate in the amnesty and rehabilitation program and would not be subjected to punitive action, including administrative separation, solely for drug use. He waived participation in the amnesty program and the Fort Riley Drug Rehabilitation Program. 10. His chain of command recommended approval of the chapter 10 and on 1 February 1972, the appropriate separation authority approved the applicant's request directing he be issued an Undesirable Discharge Certificate. 11. On 15 February 1972, he went AWOL and on 17 February 1972, he returned to military control. 12. On 22 February 1972, he was discharged under AR 635-200, chapter 10 for the good of the service. His service was characterized as UOTHC. He completed 7 months and 21 days of net active service this period. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he held the military occupational specialty 11B (Light Weapons Infantry); he had 171 days lost time (AWOL); and he was awarded or authorized the National Defense Service Medal and the M16 Rifle Sharpshooter Marksmanship Qualification Badge. 13. In 1980, the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge: a. He stated/described, in pertinent part, he was not mature enough to take orders from someone who seemed to want to hurt him mentally, physically, and financially, instead of trying to help him understand what it was all about. He tried to see an Army psychiatrist with no success. He felt he was discriminated against. One day the company went to gas chamber and his mask was taken off his face. A can of gas was stuck to his top lip and burned his lip. He was given an Article 15, UCMJ. He explained he grew up having to deal with racism. The company he was in had more blacks in one platoon that his Captain and Sergeant had ever seen. He further described the ways the platoon was discriminated against, as a result, the platoon went on a hunger strike. If he is wrong, why was his Article 15s (forfeiture of pay) refunded to him after he signed out of the Army? b. On 20 April 1982, the ADRB found his discharge was proper based on the absence of any prejudicial error in the discharge process and the absence of any policy mandating a retroactive change in the discharge. It also found his discharge was equitable based on the applicant's record of misconduct. The ADRB could not find anything in the record or the applicant's submission which would provide any mitigation or justification for his misconduct. The ADRB voted unanimously to deny his petition. 14. In 1998, he petitioned the ABCMR based on the same reasons, he petitioned the ADRB. On 6 January 1999, the ABCMR denied his petition, determining his application was not submitted within the time required. He had not presented and the record did not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law. 15. By electronic mail, 7 April 2021, an ABCMR analyst contacted the applicant for clarification in regards to his requested relief, which was not elected on his DD Form 293. He responded that he requested an upgrade, but would take all that applied. The analyst requested that he be more specific. The applicant responded "General under Honorable Conditions." 16. The applicant requests an upgrade. He states he was not treated fairly or equally as a service member or a human being. a. His record shows, he was inducted at the age of 19 years old; he accepted three NJPs; court-martial charges were preferred against him for being AWOL; and he had 171 days lost time due to being AWOL. He completed 7 months and 21 days of net active service. b. In regards to his contention that he was not treated fairly and equal, the applicant did not describe how he was treated; however, he did describe in his previous petitions to the ADRB and/or the ABCMR how he and other members, who were African American, were discriminated against when he was in the service. c. In regards to the applicant's request for a personal appearance, Army Regulation 15-185 (ABCMR), 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. d. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge (punitive discharge). Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. A medical examination was required for separation under chapter 10, a mental status evaluation was not required. e. According to the MCM, Article 86, UCMJ –– Absence without leave, for more than 30 days, punishment included a punitive discharge. 17. In reaching its determination, the Board can consider the applicant’s petition and his service record 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 applicant’s 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 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 XX 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 to amend the decision of the ABCMR set forth in Docket Number AC98-12424 on 6 January 1999. 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. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization will be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment of current period of service with due consideration for the member's age, length of service, grade, and general aptitude. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge (punitive discharge) could submit a request for discharge in lieu of trial by court-martial. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. A medical examination was required for separation under chapter 10, a mental status evaluation was not required. 3. Per Manual for Courts-Martial, Article 86, UCMJ –– Absence without leave, for being AWOL for more than 30 days, punishment included a punitive discharge. 4. 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 on the basis of 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) AR20210005618 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210005618 6 ABCMR Record of Proceedings (cont) AR20210005618 5