IN THE CASE OF: BOARD DATE: 24 June 2021 DOCKET NUMBER: AR20210009155 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded and his dates of service be corrected. 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), dated 19 August 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: a. His dates of service are not correct and he was not discharged under anything other than honorable conditions. b. He served as an Army Ranger in mid-1985 to 1986/87 on a mission in Honduras, Nicaragua, and Panama. After serving some time, his group was offered an opportunity to leave and they all accepted. c. After discharge, he never received any further communications. He believed/assumed that after serving in this capacity, his discharge was honorable. He did not leave under any disciplinary circumstances. d. He never received any communications and has not had a need for his DD Form 214 (Certificate of Release or Discharge from Active Duty) until recently. He had tried to obtain a copy for the past couple of years and National Archives was been unable to find his records. He finally visited a Department of Veteran Affairs center and was given a copy showing the UOTHC discharge. 3. The applicant enlisted in the Regular Army on 8 March 1984. 4. The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows he attended the Airborne Course at Fort Benning, Georgia but did not complete the training. His record is void of documentation that shows he completed the Ranger course or was awarded the Ranger Tab for obtaining qualification as an Army Ranger. 5. The applicant was reported absent without leave (AWOL) by his unit on or about 20 June 1985. A DA Form 4187 (Personnel Actions), dated 23 December 1985, shows he voluntarily surrendered to civilian authorities on 15 December 1985 and was returned to military control. 6. Court-martial charges were preferred against the applicant on 24 December 1985, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with being absent without leave from on or about 20 June 1985 until on or about 15 December 1985. 7. The applicant's available record contains only page one of his U. S. Army Armor Center (USAARMC) Form 2787 (Request for Discharge for the Good of the Service under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)), which does not include the date of his request or the majority of his elections. It does show 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 a UOTHC discharge; and the procedures and rights that were available to him. a. 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. b. It is unclear whether or not he elected to provide a statement in his own behalf. 8. The separation authority approved the applicant's request for discharge on 13 January 1986, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and discharged UOTHC. 9. The applicant was discharged on 10 February 1986, 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. 10. 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. 11. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 12. The applicant has not provided and the recode does not contain any documentation to support his contentions that: * he ever qualified or served as an Army Ranger * he was ever assigned to or served in Honduras, Nicaragua, or Panama in any capacity * he served on active duty after 10 February 1986, the separation date shown on his DD Form 214 13. The Board should consider the applicant's statement for consideration of granting relief in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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. 2. The Board members all agreed that the burden of proof lies with the applicant; however, he did not provide any supporting documentation and his service record has insufficient evidence to support his request for a change in his service dates. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX XXX 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. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018 [Wilkie Memorandum], 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 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.) AR20210009155 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont.) AR20210009155 5 ABCMR Record of Proceedings (cont.) AR20210009155 4