IN THE CASE OF: BOARD DATE: 26 May 2021 DOCKET NUMBER: AR20210007899 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) 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 30 January 2020 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, he is presently moving on from the many mistakes, terrible decisions, embarrassing self-discipline, and character changes of his past. Shame and dishonor have plagued his past and he feels haunted by his military records, which are a reflection of his past. 3. The applicant enlisted in the Regular Army on 3 April 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: * on 2 August 1978, for being absent without leave (AWOL), from on or about 27 July 1978 through on or about 1 August 1978 * on 27 August 1978, for wrongfully possessing one ounce, more or less of marijuana, on or about 1 August 1978 * on 18 December 1978, for disobeying a lawful order and for failing to return to his unit on time from being on a pass, on or about 13 December 1978 * on 3 January 1979, for failing to obey lawful orders and for being in possession of contraband by having beer in the barracks, on or about 1 January 1979 * on 29 January 1979, for being AWOL, from on or about 2315 hours, 23 January 1979 through on or about 0315 hours, 24 January 1979; from on or about 2300 hours, 24 January 1979 through on or about 0315 hours, 25 January 1979; and for being found sleeping on his post, on or about 20 January 1979 5. Before a special court-martial on or about 7 November 1978, at Fort Hood, TX, the applicant was found guilty of being absent without leave (AWOL), from on or about 4 October 1978 through on or about 6 October 1978, and larceny of property, on or about 26 September 1978. 6. The applicant underwent a mental status evaluation on an unspecified date. The relevant DA Form 3822-R (Report of Mental Status Evaluation) show he had no significant mental illness, was mentally responsible, and had the mental capacity to understand and participate in board proceedings. 7. The applicant's commander notified the applicant of his intent to initiate actions to separate the applicant from service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14; however, the notification memorandum is not available for review. 8. The applicant's commander formally recommended the applicant's separation from service on 20 April 1979, under the provisions of Army Regulation 635-200, paragraph 14-33, for misconduct – frequent incidents of a discreditable nature. 9. The applicant consulted with counsel on 26 April 1979 and was advised of the basis for the contemplated actions to separate him and of the rights available to him. He acknowledged his understanding and waived consideration of his case by, and personal appearance before, a board of officers. He elected not to submit a statement in his own behalf. 10. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 1 May 1979, under the provision of Army Regulation 635-200, Chapter 14, and directed he receive a DD Form 794A (UOTHC Discharge Certificate). 11. The applicant was discharged on 12 June 1979. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b; his service was characterized as UOTHC; and he was issued a UOTHC Discharge Certificate. 12. In reaching its determination, the Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, 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 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 :X :X :X 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. The version in effect at the time provided that: a. 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. 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 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A UOTHC discharge was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007899 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210007899 1 ABCMR Record of Proceedings (cont) AR20210007899 1