IN THE CASE OF: BOARD DATE: 27 April 2022 DOCKET NUMBER: AR20210016821 APPLICANT REQUESTS: his under other than honorable conditions discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * personal statement * 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 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 he went on a reforger to Germany in 1979 and was medically evacuated back to the States. He was told that his bones were brittle and he could not work; because he could not work he could not stay in the barracks, so he went home. While at home he got his marriage certificate and returned to Fort Dix to see a Judge Advocate Generals officer. A judge told him you don't want us and we don't want you so he was given a general discharge. He was not aware of the time limits to apply and he has never been in any trouble since discharge. 3. The applicant enlisted in the Regular Army for four years on 5 July 1978. His Personnel Qualification Record shows upon completion of advanced individual training, on 30 August 1978 he reported to his first unit of assignment with Company A, 1st Battalion, 5th Cavalry Division at Fort Hood TX. The highest grade he held was private first class (PFC/E-3). 4. The record indicates the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on: * 1 June 1979, for stealing a wheel and tire on or about 27 May 1979 * 10 July 1979, for being absent without leave (AWOL) from on or about 25 June 1979 until on or about 2 July 1979 5. The applicant was afforded a Mental Status Evaluation on 22 August 1980 that found: * no abnormalities in his behavior, level of orientation, mood, thinking process, thought content or memory * he had the mental capacity to understand and participate in the proceedings * he met retention requirements 6. Court-martial charges were preferred against the applicant on 22 August 1980, for violation of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with AWOL, from on or about 5 March 1980 until on or about 12 August 1980. 7. A Personnel Control Facility Interview Sheet, completed by his company commander on 23 August 1980, provides the following: a. The applicant had been attempting to get a compassionate reassignment for 6 months due to his parent's getting a divorce, his father's threating his mother's life, and that his girlfriend being pregnant. The process wasn't complete when he went AWOL. b. He had talked to his company commander and the chaplain who were working on a compassionate/hardship/medical discharge. The applicant was diagnosed with for rheumatoid arthritis and had been told we would probably be in a wheelchair before he was 35. c. The applicant was on the levy for Germany and attempted unsuccessfully to get out of it. He was told he would have to finish his paper work in Germany. The applicant went on leave and there appeared to be some mix up of his paperwork with his leave form getting lost. The company commander wanted him to return but he became fed up with the delays and stayed home. d. The interviewer felt that the applicant had too many personal problems to be a productive Soldier. 8. On 25 August 1980, the applicant consulted with legal counsel 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 an under other than honorable conditions 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 Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service. c. He was advised he could submit any statements he desired in his own behalf; however, the applicant waived this right. 9. The applicant's company commander recommended approval of the applicant's request for discharge in lieu of trial by court-martial, and that he receive an other than honorable discharge. 10. The separation authority's approval of the request is not of record. In light of the DD Form 214, the Board presumes the applicant's leadership completed his separation properly. a. A copy of his DD Form 214 shows he was discharged on 14 March 1980 under the provisions of Army Regulation 635-200, Chapter 10, Admin[istrative] Discharge Conduct Triable by Court Martial with a characterization of service of under conditions other than honorable. He had 1 year, 10 months, and 6 days of net active service, with the periods of lost time (totaling 171 days); and was awarded or authorized the Sharpshooter Marksmanship Badge with Rifle bar. b. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. An under other than honorable conditions is authorized and normally considered appropriate; however, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 11. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. The applicant has provided no information that would indicate the contrary. 12. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 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 record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. One potential outcome was to grant partial relief with a general under honorable conditions discharged based on liberal consideration. However, upon review of the applicant’s petition and available military records, the Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support to show honorable conduct that might have mitigated the discharge characterization. The Board found insufficient evidence of in-service mitigating factors for the misconduct 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. Therefore, relief was denied. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, United States Code (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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provided, in pertinent part, 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, an under other than honorable conditions discharge was normally considered appropriate. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records, on 25 July 2018 [Wilkie Memorandum], 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 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.) AR20210016821 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1