ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 
IN THE CASE OF:  BOARD DATE: 16 July 2021 DOCKET NUMBER: AR20210009414 
APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20180012606 on 29 July 2019. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded. 
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 23 May 2019 [previous application] 

. 
a self-authored statement requesting reconsideration 

. 
three third-party statements 

. 
Department of Veterans Affairs (VA) applications, examinations, and denials (16 pages) 


FACTS: 
1. 
Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20180012606 on 29 July 2019. 

2. 
The applicant states in accordance with the prior ABCMR decisional document, which indicated a reconsideration of his request was possible if he provided character witness statements or evidence of post-service achievements, he is submitting character statements that he previously provided to the VA. 

3. 
Title 10, U.S. Code (USC), Section 1552a (3)(D) provides that any request for reconsideration of a determination of a Board under this Section, no matter when filed, shall be reconsidered by a Board under this Section if supported by materials not previously presented to or considered by the Board in making such determination. 

4. 
Army Regulation 15-185 (ABCMR) provides that a request for a reconsideration will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The applicant's submission of the third-party statements and VA records constitutes new evidence. 

5. 
The applicant was inducted into the Army of the United States on 25 August 1969. He served in the Republic of Vietnam from on or about 13 February 1970 through on or about 12 February 1971. 

6. 
The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the following offences: 

. on 11 February 1970, for being absent without leave (AWOL), from on or about 1 February 1970 until on or about 10 February 1970 . on 2 April 1970, for disobeying a direct order, on or about 24 March 1970 

7. 
The applicant's service record is void of the complete facts and circumstances surrounding his discharge. However, his DD 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 19 November 1971, under the provisions of Army Regulation 635-200 (Personnel Separations -Enlisted Personnel), with the Separation Program Number (SPN) 246 [for the good of the service, in lieu of trial by court-martial]. The DD Form 214 he was issued further shows he was discharged in the rank/grade of private/E-1, his service was characterized as UOTHC, and he was issued a DD Form 258A (Undesirable Discharge Certificate). 

8. 
The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no 


information that would indicate the contrary.  Further, it is presumed that the applicant’s 
discharge accurately reflects his overall record of service. 
9. 
The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 

10. 
The applicant provides: 


a. 
Copies of three third party statements [previously submitted in concert with his request to the Department of Veterans Affairs] that describe him as an active church member, an excellent role model, a person good moral character. He is an individual that has a passion for the truth; sane and sensible reality. He sincerely believes in progress, justice, trust and hope. He has built his life on a strong moral foundation. He is consistently there to lend a helping hand when work is needed to be done around the grounds and volunteers continuously for any and all community-related activities being sponsored by the church. 

b. 
VA records that show he was denied VA benefits on 30 July 1990 and again on 29 September 2017, based on his character of discharge. The medical evaluation details his medical diagnoses. 


11. 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: 
After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. The Board considered the applicant's statement, his record of service, the frequency and nature of the misconduct in the records, the absence of a separation packet and the reason for separation (a result of his request). The Board found no evidence of in-service mitigating factors or mitigation in the post service records. The Board considered the letters of reference, but found them insufficient for clemency. Based upon a preponderance of evidence, to include the short term of honorable service completed and the high number of days lost during his service period (502 days), the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
:XXX : : GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
::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. 
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. 
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. 

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.  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 includes 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. 
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 (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. 


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