ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  24 September 2021 DOCKET NUMBER:  AR20210010257 


APPLICANT REQUESTS:  The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable.   

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DD Form 214 (Report of Separation from Active Duty)

.Character reference letters

.Multiple technical certificates and certifications

.Training and recognition certificates

.RELIAS transcripts

.Applicant’s resume



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states his discharge of other than honorable conditions took place over40 years ago and he has been a model citizen by serving the disability community.  Forthe last 30 years he has dedicated his life to working with adults and children withdisabilities.  He had an alcohol and drug problem at the time.  He has also attachedother documents.

3.On 5 April 1976, the applicant enlisted in the Regular for a period of 3 years.  Hecompleted training requirements and was awarded his military occupational specialty.

4.On 6 December 1976, the applicant received non-judicial punishment (NJP) underthe provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing tobe at his appointed place of duty (morning work-call and afternoon formation).  Hispunishment consisted of reduction to pay grade E-2, forfeiture of $50, and 7 days ofextra duty.  The applicant did not appeal.
5.On 2 May 1977, he received NJP under the provisions of Article 15 of the UCMJ forfailing to be at his appointed place of duty (physical training and afternoon formation).His punishment consisted of forfeiture of $100, reduction to pay grade E-2, and 30 days’correctional custody (suspended for 90 days).  He did not appeal.

6.On 5 July 1977, the applicant received NJP under the provisions of Article 15 of theUCMJ for failing to be at his appointed place of duty (morning work-call formation).  Hispunishment consisted of forfeiture of $87, reduction to pay grade E-1, and restrictionand extra duty for 14 days.  The applicant did not appeal.

7.In December 1977, he received NJP under the provisions of Article 15 of the UCMJfor being absent without leave (AWOL) from on or about 27 October to 28 November1977.  His punishment consisted of 30 days’ correctional custody, reduction to paygrade E-1, and forfeiture of $198 per month for 2 months.

8.On 22 August 1978, court-martial charges were preferred against the applicant forbeing AWOL from on or about 4 April to 10 August 1978.

a.On 23 August 1978, after consulting with legal counsel, the applicant voluntarilyrequested to be discharged for the good of the service under the provisions of Chapter 10, Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel). 

b.Legal counsel advised the applicant of the basis for his contemplated trial bycourt-martial and the maximum permissible punishment authorized under the UCMJ; of the possible effects of an Under Other Than Honorable Discharge, if the request was approved; and of the procedures and rights available to him.   

c.The applicant was medically cleared for separation action.  A mental statusevaluation also psychiatrically cleared him for separation action deemed appropriate by his chain of command.   

d.His chain of command recommended approval of his request to be discharged,and the Chief, Criminal Law Division recommended that the separation authority sign and approve the applicant’s request to be discharged.   

e.On 8 September 1978, the separation authority approved the applicant’s requestto be discharged under the provisions of Chapter 10, AR 635-200 for the good of the service, and directed he be given a discharge Under Other Than Honorable Conditions. 

9.On 21 September 1978, the applicant was discharged accordingly.  The DD Form214 he was issued shows he was discharged Under Other Than Honorable Conditionsand issued an UOTHC Discharge Certificate.  He completed 2 years and 5 days of netactive service with 190 days of lost time.  The applicant was not awarded a personaldecoration.

10.In support of his case, the applicant provided multiple character references letters,certificates of training, certificates of recognition, certifications, transcripts, and a copy ofhis resume.  The documents were reviewed and considered by the Board.

11.The applicant contends it has been more than 40 years since he was dischargedand his post-service achievements warrant an upgrade of his UOTHC discharge.Nevertheless, the evidence shows he received multiple NJPs and court-martial chargeswere preferred against for being AWOL (more than 30 days) and dropped from his unit’srolls.

12.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  Chapter 10 of that regulation provides, in pertinent part, that a member whohas committed an offense or offenses for which the authorized punishment includes apunitive discharge may, submit a request for discharge for the good of the service in lieuof trial by court-martial.  The request may be submitted at any time after charges havebeen preferred and must include the individual's admission of guilt.  Although anhonorable or general discharge is authorized, a discharge under other than honorableconditions is normally considered appropriate.

13.In order to justify correction of a military record the applicant must show to thesatisfaction of the Board, or it must otherwise satisfactorily appear, that the record is inerror or unjust.  The Board can consider the applicant's petition, service record, andstatements in light of the published guidance on equity, injustice, or clemency.

BOARD DISCUSSION: 

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, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with 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 AR 635-200, Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial by court-martial. The applicant provided multiple character references letters, certificates of training, certificates of recognition, certifications, transcripts, and a copy of his resume.  The documents were reviewed and considered by the Board, clearly evidence of post-service achievements in support of a clemency determination. After reviewing the application and all supporting documents, the Board found that although his service did not rise to the level required for an honorable discharge, relief is warranted based upon guidance for consideration of discharge upgrade requests, in the form of a general discharge as a matter of clemency. 


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : GRANT FULL RELIEF 

XX: XX: GRANT PARTIAL RELIEF 

: : GRANT FORMAL HEARING 

: XXX: : : : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief.  As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by reissuinghim a DD Form 214 for the period ending 21 September 1978 showing his character ofservice as Under Honorable Conditions, General.

2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to upgrading the characterization of his discharge to fullyhonorable

XCHAIRPERSON


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 militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so.
2.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forththe basic authority for the separation of enlisted personnel.  Chapter 10 of thatregulation provides, in pertinent part, that a member who has committed an offense oroffenses for which the authorized punishment includes a punitive discharge may, submita request for discharge for the good of the service in lieu of trial by court-martial.  Therequest may be submitted at any time after charges have been preferred and mustinclude the individual's admission of guilt.  Although an honorable or general dischargeis authorized, a discharge under other than honorable conditions is normally consideredappropriate.

3.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.

a.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. 

b.This guidance does not mandate relief, but rather provides standards andprinciples 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.  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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