IN THE CASE OF: BOARD DATE: 1 September 2021 DOCKET NUMBER: AR20210011501 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. 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 14 October 2019 * Orders Number 3-7, issued by Headquarters, Iowa National Guard on 5 January 1977 * Medical Power of Attorney, State of Wyoming, dated 10 August 2017 * Letter from the Army Board for Correction of Military Records (ABCMR), dated 31 August 2020 * Limited Power of Attorney, dated 30 September 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 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 defers his statement to his Power of Attorney. 3. The applicant's Power of Attorney states, in effect, that the applicant is requesting that his discharge be upgraded to an honorable discharge. He has had a severe stroke and is not doing very well; it would make him proud to have his discharge upgraded. The reason he received a dishonorable discharge was because they got married and were on their honeymoon. She did not know he was in the service but he turned himself in once they returned from their honeymoon. He is in a nursing home now and is not doing well. 4. The applicant enlisted in the Iowa Army National Guard (IAARNG) on 11 September 1976. He was honorably discharged from the IAARNG on 31 December 1976, for the purpose of immediate reenlistment in the New Mexico Army National Guard (NMARNG) 5. The applicant entered initial active duty for training (IADT), completed his period of IADT and was awarded military occupational specialty (MOS) 64C (Motor Transport Operator), and was released from active duty (REFRAD) and returned to the control of the IAARNG. 6. The applicant reenlisted in the IAARNG on 1 July 1977. 7. The applicant was mailed a letter of instructions for unexcused absence, dated 6 March 1978, which notified him that he received unauthorized absences for being absent from four scheduled unit training assemblies (UTA) or multiple unit training assemblies (MUTA) on 4 March 1978 and 5 March 1978. 8. The applicant was mailed a notice of unsatisfactory participation on 12 September 1978. This letter notified him that because of his unexcused absences, he was being involuntarily ordered to active duty for a period of 24 months. His record contains a Postal Service (PS) Form 3811 (Return Receipt, Registered, Insured and Certified Mail) that shows the notice was signed for on 19 September 1978. 9. Orders Number 77-143, issued by Headquarters, Fifth United States Army on 19 April 1979, ordered the applicant to report to Fort Leonard Wood, Missouri on 31 May 1979, for an active duty commitment of 18 months and 25 days. 10. Orders Number 89-11, issued by Headquarters, Iowa National Guard on 7 May 1979, discharged the applicant from the IAARNG with a general discharge, effective 30 May 1979. 11. Court-martial charges were preferred against the applicant on 6 August 1979, for a violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL), from on or about 31 May 1979 through on or about 31 July 1979. 12. The applicant consulted with counsel on 7 August 1979 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 was advised he could submit any statements he desired in his own behalf. He elected to submit a statement on his own behalf; however, the statement is not available for review. 13. The applicant's record is void of a DA Form 3822-R (Report of Mental Status Evaluation); however, his commander noted on the request for discharge that he did not have reasonable grounds to believe that the applicant was, at the time of his misconduct, mentally defective, deranged, or abnormal. 14. The separation authority approved the applicant's request for discharge on 29 August 1979, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed his reduction to the lowest enlisted grade and the issuance of a DD form 794A (UOTHC Discharge Certificate). 15. The applicant was discharged on 17 September 1979, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 16. 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. 17. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: 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, and nature of his misconduct and the reason for his separation. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Base on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, the Board denied relief. 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. 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 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 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. 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 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) AR20210011501 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1