IN THE CASE OF: BOARD DATE: 22 February 2022 DOCKET NUMBER: AR20210009949 APPLICANT REQUESTS: Reconsideration of his previous request that 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 3 May 2021 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 AR20120022636 on 16 July 2013. 2. The applicant states he tried to keep his family together. His wife had a boyfriend, he only wanted to see his daughter every chance he had. His wife would move whenever he was getting close. He went absent without leave (AWOL) and turned himself in to the military police. His ex-wife and daughter are both deceased now. 3. The applicant enlisted in the Regular Army on 17 July 1968. He was honorably discharged on 22 October 1969, for the purpose of immediate reenlistment. He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period that confirms his service was characterized as honorable. 4. The applicant reenlisted in the Regular Army on 23 October 1969. 5. The applicant accepted non-judicial punishment (NJP) on 14 May 1970, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty, on or about 21 April 1970, and for being absent from his place of duty, on or about 24 April 1970. 6. Before a special court-martial on or about 18 March 1971, at Fort Benjamin Harrison, Indiana, the applicant was found guilty of being AWOL, from on or about 30 November 1970 to on or about 8 February 1971. The court sentenced him to reduction to the rank/grade of private/E-1, extra duty for two months, and restriction to the limits of the base for a month. 7. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the following dates: * on 11 January 1972, for being AWOL, from on or about 1 January 1972 to on or about 6 January 1972 * on 16 February 1972, for failing to obey a lawful general regulation, on or about 16 February 1972 * on 4 April 1972, for being AWOL, from on or about 23 March 1972 to on or about 30 March 1972 * on 7 May 1972, for failing to go at the time prescribed to his appointed place of duty, on or about 4 May 1972 8. Court-martial charges were preferred against the applicant on 10 July 1973, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL, from on or about 25 March 1973 through on or about 25 June 1973. 9. The applicant consulted with legal counsel on 20 July 1973 and 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. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under 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. In his request for discharge, 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. 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 to submit a statement in his own behalf; wherein, he stated he could no longer cope with the ways of the Army. He returned to the service willingly for one reason, a discharge. 10. The separation authority approved the applicant's request for discharge on 24 August 1973, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and directed his reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 11. The applicant was discharged on 28 August 1973. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, and his service was characterized as UOTHC. He completed 3 years, 4 months, and 16 days during this period of service, and he had 174 days of lost time. 12. On 16 July 2013, the Board considered his request for an upgrade of his discharge but denied it. The Board determined the following: a. The evidence of record shows he went AWOL on four separate occasions and he received a special court-martial and NJP on two occasions for being AWOL. He received NJP on two more occasions for disobeying order and failure to report. b. Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also rendered his service unsatisfactory. 13. The Board should consider the applicant's statement and overall military service 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 applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal 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 applicant provided insufficient evidence of post-service achievements in support of a clemency determination. After reviewing the application and all supporting documents, the Board found that relief was not warranted based upon guidance for consideration of discharge upgrade requests. 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 to amend the decision of the ABCMR set forth in Docket Number AR20120022636 on 16 July 2013. 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 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 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. 2. 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) AR20210009949 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1