IN THE CASE OF: BOARD DATE: 7 January 2022 DOCKET NUMBER: AR20210014332 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable, and a personal appearance before a traveling board closest to Detroit, MI. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 (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 states: a. He is asking to be upgraded to an honorable discharge, although he managed to get into trouble. He was very young then and he regrets this fact, but during the time he served he was promoted in basic training to private first class, and he was the colonel’s driver while stationed at Fort Huachuca, AZ. b. He was a guidon carrier and platoon leader of his basic training unit at Tank Hill, SC. Any time spent in the military and all that you must accomplish to even make it through to serve your country is more than enough to recognize him as an honorable veteran, and for him to be entitled to his benefits. He is years old now and really needs to be recognized for his service to the Army. He also provided an updated address. 3. On 22 May 19, at the age of years old, the applicant enlisted in the Regular Army for a period of 3 years. He completed training requirements and was awarded his military occupational specialty 88M (Motor Transportation Operator). He was assigned to his unit on Fort Huachuca, AZ, on or about 16 October 1986. 4. On 25 February 1987, the applicant received non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for altering an official document (sick slip). His punishment consisted of restriction and extra duty for 14 days; and forfeiture of $100, suspended to be automatically remitted if not vacated before 26 May 1987. He did not appeal. 5. His record contains Personnel Action forms that show he was absent without leave (AWOL) from on or about 26 October to 0815 hours, 28 October 1987. He went AWOL again at 1430 hours, 28 October 1987 until he surrendered to military authorities at Warren, MI on 16 February 1988. 6. On 23 February 1988, court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86, for being AWOL from 26 to 28 October 1987, and 28 October 1987 to 16 February 1988. 7. On 24 February 1988, the applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of a lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. ? b. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration (VA) * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions; and may expect to encounter substantial prejudice in civilian life because of the UOTHC discharge. d. He was also advised that he could submit statements in his own behalf and he elected not to submit a statement in his own behalf. e. The applicant and his counsel placed their signatures on the document. f. His chain of command recommended approval of his request for discharge with the issuance of an UOTHC discharge. g. On 7 March 1988, the separation authority approved the applicant's request for discharge, reduced him to the lowest enlisted grade, and directed that his service be characterized as under other than honorable conditions. 8. The applicant's DD Form 214 shows he entered active duty this period on 22 May 1986 and he was discharged on 11 April 1988 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service. He had completed 1 year and 7 months of net active service during this period with time lost from 26 to 27 October 1987, and 28 October 1987 to 15 February 1988. The applicant was not awarded a personal decoration. 9. The applicant’s contentions were carefully considered; nevertheless, the evidence of record shows the applicant was 22 years of age when he enlisted in the Regular Army. He successfully completed training and he was awarded MOS 88M. As such, his contention that he was young and immature is not supported by the evidence of record. In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. He received NJP for altering an official document, and he went AWOL on 2 occasions. Court-martial charges were preferred against him and his request for discharge to avoid trial by court-martial was voluntary. 10. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions (UOTHC) is normally considered appropriate. In pertinent part, the regulation provides that 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. 11. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 12. 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 Board or the Director of ABCMR may authorize a personal appearance. BOARD DISCUSSION: 1. 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. 2. The Board carefully considered the applicants 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, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post- service achievements or letters of support to weigh 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. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 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 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions (UOTHC) is normally considered appropriate. b. 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. c. 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. 3. 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. 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 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. 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) AR20210014332 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1