ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:   19 August 2021DOCKET NUMBER:  AR20210007023 


APPLICANT REQUESTS:  the widow of a deceased former service member (FSM) requests her late husband's under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.  Additionally, she requests a personal appearance before the Board via video or telephone. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 3 October 2020, with Applicant’sStatement, Marriage Certificate, FSM’s Certificate of Birth, and State of MarylandCertificate of Death, dated 29 December 2020

.documents from the FSM’s separation packet

.DD Form 258A (Undesirable Discharge Certificate), dated 18 July 1972

.Maryland Veterans’ Commission Letter, dated 10 February 1975

.Military Review Boards Agency Letter, dated 11 March 1986, with DD Form 293(Application for the Review of Discharge or Dismissal from the Armed Forces ofthe United States), undated, with Army Discharge Review Board (ADRB) CaseReport and Directive

.ADRB Decision Letter, dated 16 April 1986

.DD Form 293, dated 29 July 1988

.U.S. Army Reserve Personnel Center Letter, dated 19 August 1988

.Army Board for Correction of Military Records (ABCMR) Letter, dated31 March 2008



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 ABCMR conducted a substantive review ofthis case and determined it is in the interest of justice to excuse the applicant's failure totimely file.

2.The applicant states:

a.Her husband had a stroke last April and lost the activity in his right side and hisspeech is very limited.  He had a tracheotomy that has been removed but he still has a feeding tube.  The applicant was not married to the FSM during his time in the Army.  She would like to have him transferred to a Veterans’ medical facility so that he can receive the treatment that he needs to be able to function again and return home. 

b.She needs the Board’s help to give the FSM a better chance at getting the helphe needs and deserves.  He was an ordained minister and loved to talk to people about the Lord.  She can only imagine his frustration at not being able to speak the way he used to.  She is struggling financially to meet their monthly budget and is in arrears on the facilities monthly payments.  She prays that the FSM’s military status will be considered for an upgrade. 

3.The FSM was inducted into the Army of the United States on 16 December 1970.

4.The FSM accepted non-judicial punishment on 23 February 1971, under theprovisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absentwithout leave (AWOL), from on or about 20 January 1971 through on or about11 February 1971.

5.Item 44 (Time Lost) of the FSM’s DA Form 20 (Enlisted Qualification Record)indicates he was reported AWOL on the following dates:

.from on or about 17 June 1971 to on or about 21 July 1971

.from on or about 30 July 1971 to on or about 4 June 1972



6.Court-martial charges were preferred against the FSM, for violations of the UCMJ.However, the relevant DD Form 458 (Charge Sheet) is not available for review.

7.The FSM consulted with legal counsel on 1 March 1972 and was advised of thebasis for the contemplated trial by court-martial; the maximum permissible punishmentauthorized under the UCMJ; the possible effects of a UOTHC discharge; and theprocedures and rights that were available to him.

a.Subsequent to receiving legal counsel, the FSM voluntarily requested dischargeunder 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.  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. 

b.He elected not to submit statements in his own behalf.
8.The FSM’s commander recommended approval of the FSM’s request for dischargeunder the provision of Army Regulation 635-200, Chapter 10.  The available record isvoid of the separation authority’s approval.

9.The FSM was discharged on 18 July 1972.  His DD Form 214 (Armed Forces of theUnited States Report of Transfer or Discharge) confirms he was discharged under theprovisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  Hewas discharged in the lowest enlisted grade and his service was characterized asUOTHC.

10.The FSM was charged due to the commission of an offense punishable under theUCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial.

11.The Army Discharge Review Board (ADRB) considered the FSM's request for adischarge upgrade on 10 August 1977 and 16 April 1986.  The ADRB determined hewas properly and equitably discharged and denied his petitions for relief.

12.The Board should consider the FSM's overall record in accordance with thepublished equity, injustice, and clemency determination guidance.


BOARD DISCUSSION: 

1.The Board found the available evidence sufficient to fully and fairly consider thiscase 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 forconsideration of discharge upgrade requests. The Board considered the FSM's recordof 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-servicemitigating factors and the applicant provided no evidence of post-service achievementsor letters of reference in support of a clemency determination. Based on apreponderance of evidence, the Board determined the character of service the FSMreceived 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 :XX :XX 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. 

X CHAIRPERSON


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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.
2.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  The version in effect at the time provided that:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
 c.  Chapter 10 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 Department of Veterans Affairs (VA) benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UOTHC discharge was normally considered appropriate. 
 
3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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. 
 
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