IN THE CASE OF: BOARD DATE: 14 July 2022 DOCKET NUMBER: AR20210011584 APPLICANT REQUESTS: * an upgrade to his under other than honorable conditions (UOTHC) character of service * to show his excess leave as 54 days instead of 94 days on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 17 October 1979 * a personal appearance (via video/telephone) before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * DD Form 215 (Correction to DD Form 214) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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. In the processing of this case the ABCMR was unable to obtain the applicant's service personnel records. The records available to the ABCMR were provided by the applicant and are sufficient for the ABCMR to conduct a fair and impartial review of this case. 3. The applicant states he served honorably for over two years and excelled in his service with 7th Special Forces Group (Airborne) (SFG(A)), which is an elite group with many classified duties assigned. He is seeking a change to his characterization to obtain medical benefits. He was able to maintain independence until 2014. In addition, the amount of days in excess leave in item 18 (Remarks) on his DD Form 214 is incorrect. 4. The applicant’s DD Form 214/215 shows: a. He enlisted in the Regular Army on 19 April 1977. He completed initial entry training and was awarded military occupational specialty 64C (Motor Transportation Operator). b. He did not deploy. c. He was discharged on 17 October 1979 with an UOTHC character of service, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) chapter 10, administrative discharge, conduct triable by court-martial. The specific court-martial charges brought against the applicant are not available for the Board to review. However, his DD Form 214 shows he had lost time of one day on 3 May 1979, and from 31 May 1979 through 26 July 1979 (56 days). He completed 2 years, 4 months, and 1 day of active service. d. Item 18 shows excess leave of 94 days from 24 August 1979 through 17 October 1979 (actually 54 days). e. The applicant was awarded or authorized the Parachutist Badge, and the Expert Marksmanship Qualification Badge with Auto-Rifle (M-16). BOARD DISCUSSION: 1. The Board found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense 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 and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 3. The Board found there is a clear error in the amount of excess leave recorded on the applicant’s DD Form 214. The Board determined this error should be corrected. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending block 18 of his DD Form 214 as follows: * Delete “Excess leave 094 days” * Add “Excess leave 054 days” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the character of service. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the policies and procedures for the separation of enlisted personnel. a. Paragraph 3-7a 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. b. Paragraph 3-7b provides that 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. 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. 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 based on 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) AR20210011584 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1