ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 July 2021 DOCKET NUMBER: AR20210009169 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal) in lieu of DD Form 149 (Application for Correction of Military Record) * National Personnel Records Center (NPRC) Service Request All Details, 11 February 2020 * NPRC Letter to the Applicant, 28 February 2020 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 he was never given his awards for maxing his test at Fort Drum, NY for mortar man. His wife was giving him a lot of problems because he did not progress so he left Mexico. 3. On 10 October 1979, the applicant enlisted in the Regular Army for a term of 3 years, at the age of 22 years old. 4. After completing initial entry training, on 22 January 1980, the applicant was assigned to Fort Hood, TX, in the military occupational specialty 11C (Indirect Fire Infantryman), Principal Duty, Gunner. 5. On 17 September 1980, the applicant was convicted by summary court-martial, pursuant to his pleas, for one specification of Article 121, Uniform Code of Military 1 Justice (UCMJ), for stealing TA-50 (Table of Allowances 50), military property, in possession of another Soldier. He was sentenced to reduction to Private E-1, forfeiture of $150.00 pay, and 30 days confinement at hard labor. The sentence was approved and ordered executed on the same date. On 17 October 1980, the unexecuted portion of his sentence to confinement at hard labor was suspended until 6 February 1981. 6. On 4 May 1981, the applicant went absent without leave (AWOL). On 3 June 1981, he surrendered to AWOL Apprehension at Fort Blix, TX and placed in military confinement. On 5 June 1981, he went AWOL and on 4 July 1981, he was dropped from the rolls. On 7 January 1982, he returned to military control and assigned to the U.S. Army Personnel Control Facility, Fort Carson, CO. 7. On 18 January 1982, court-martial charges were preferred against the applicant for one charge and one specification in violation of Article 86, UCMJ for being AWOL from 5 June 1981, remaining absent until 7 January 1982 (216 days). 8. 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. He elected to submit statements in his on his own behalf. He submitted a request to be placed on excess leave status while awaiting completion of his discharge proceedings. 9. His chain of command recommended approval, UOTHC discharge. On 2 February 1982, his separation was reviewed by the Staff Judge Advocate and he recommended approval with a UOTHC discharge and the appropriate separation authority approved the applicant's request directing he be discharged with an under other than honorable conditions discharge. At the time the separation was approved, the applicant held the rank of Private E-1. 10. On 10 March 1982, he was discharged accordingly. His service was characterized as UOTHC. He completed 1 year, 8 months, and 7 days of his 3-year contractual obligation, with 45 days excess leave. His DD Form 214 shows he had 264 days lost time (AWOL (246 days) and confinement (18 days) and he was awarded or authorized: * Army Service Ribbon * M-16 Rifle Sharpshooter Marksmanship Qualification Badge * Hand Grenade Marksmanship Qualification Badge 11. The applicant provides the National Personnel Records Center (NPRC) Service Request All Details, 11 February 2020 and NPRC Letter to the Applicant, 28 February 2020, which show the applicant originally sent his DD Form 293 was sent to the NPRC and because the office did not have the authority to act on his request, it forwarded to the Army Review Boards Agency for action. 12. The applicant requests an upgrade. His record shows, he enlisted in the at the age of 22 years old; he was convicted by summary court-martial for stealing TA-50; court- martial charges were preferred against him for being AWOL; and he had 264 days lost time due to being AWOL and/or confined. He completed 1 year, 8 months, and 7 days of his 3-year contractual obligation, with 45 days excess leave. a. 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. b. 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. c. According to the MCM, Article 86, UCMJ –– Absence without leave, for more than 30 days, punishment included a punitive discharge. 13. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency 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 and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct 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 that the character of service the applicant received upon separation was not in error or unjust. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. 9/20/2021 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 Army Board for Correction of Military Records (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 (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. 3. 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 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 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. 4. Per Manual for Courts-Martial, Article 86, UCMJ –– Absence without leave, for being AWOL for more than 30 days, punishment included a punitive discharge. 5. 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//