IN THE CASE OF: BOARD DATE: 3 August 2022 DOCKET NUMBER: AR20220002030 APPLICANT’S REQUEST: 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) 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: a. He is requesting an upgrade of his discharge to be eligible for benefits and to restore “pride of service”. His absence without leave was due to severe substance abuse issues during his time of service (7 years and 9 months). He reenlisted twice, was promoted to sergeant (E-5), and received an Army Commendation Medal. He was a good Soldier that needed treatment for substance abuse. He became sober in 2011. b. He was a good Soldier and noncommissioned officer (NCO) that wanted to stay in the Army and have a career. His life could have changed dramatically if he realized and acknowledged his problem sooner. If the Army provided an opportunity for treatment and rehabilitation instead of discharge, he could have made a career out of the military. The applicant thinks he deserved an opportunity at treatment and rehabilitation. He is incarcerated and has no access to records. 3. On 3 May 1976, the applicant enlisted in the Regular Army for a period of 3 years. He completed training requirements and was awarded military occupational specialty 94B (Food Service Specialist). He reenlisted for a period of 3 years on 15 December 1978. 4. On 18 October 1979, the applicant received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military (UCMJ) for disobeying a lawful order. His punishment consisted of forfeiting $100 for two months and a letter of reprimand. He did not appeal. 5. On 15 July 1980, the applicant received NJP under the provisions of Article 15 of the UCMJ for being AWOL from on or about 20 to 24 June 1980. His punishment consisted of reduction to the grade of E-4, forfeiture of $200 per month for 2 months, and extra duty for 45 days. The applicant appealed, and because of his appeal, his reduction to E-4 was suspended for 90 days. 6. His Personnel Qualification Record (PQR) and Personnel Action forms show he was AWOL from on or about 4 to 6 March 1981. 7. On 7 August 1981, the applicant received NJP under the provisions of Article 15 of the UCMJ for absenting himself from his unit and remaining absent for the full shift that he was required to work at the dining facility. His punishment consisted of forfeiting $100 for one month. He did not appeal. 8. He immediately reenlisted for a period of 3 years on 28 September 1981. The applicant was a specialist five (E-5) when he reenlisted. 9. On 3 March 1982, the applicant received NJP under the provisions of Article 15 of the UCMJ for failing to be at his appointed place of duty. His punishment consisted of forfeiting $203 for one month and extra duty for 14 days. He did not appeal. 10. On 2 April 1982, the applicant was arraigned and tried by a summary court-martial. Consistent with his pleas, he was found guilty of two specifications of failing to go to his appointed place of duty. His sentence consisted of reduction to the rank of specialist four (E-4) and forfeiture of $300 for one month. On 5 April 1982, the sentence was approved and ordered executed. 11. On 16 December 1983, the applicant received NJP under the provisions of Article 15 of the UCMJ for being AWOL from on or about 2 to 13 November 1983. His punishment consisted of reduction to the grade of E-3 (suspended until 16 February 1983), forfeiture of $100 per month for 2 months, and extra duty and restriction for 30 days. He did not appeal. 12. His record shows he was AWOL from on or about 17 January to 7 February 1984. On 8 February 1984, the suspended reduction to E-3 imposed on the applicant on 16 December 1983 was vacated based on the applicant being AWOL. The unexecuted portion of the punishment was ordered executed. 13. The applicant’s PQR and Personnel Action forms show he was AWOL from on or about 20 February to 20 March 1984. 14. Court-martial charges were preferred against the applicant for violations of the UCMJ, Article 86, for being AWOL from on or about 17 January to 7 February 1984 and 20 February to 20 March 1984. 15. On 21 March 1984, 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. He was also advised of the possible effects of an under other than honorable discharge if the request was approved. 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 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 * 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. d. He was also advised that he could submit statements in his own behalf. The applicant elected not to submit a statement in his own behalf. e. His chain of command and the Staff Judge Advocate recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge. f. On 5 April 1984, 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. 16. On 3 May 1984, the applicant indicated he did not desire a separation medical examination. 17. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 15 December 1978 and he was discharged on 3 May 1984 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 5 years, 2 months and 12 days of net active service during this period with 2 years, 7 months and 12 days total prior active service. The applicant had time lost from 20 to 23 June 1980, 4 to 5 March 1981, 2 to 12 November 1983, 17 January to 6 February 1984, and 20 February to 19 March 1984. His DD Form 214 further shows in item 18 (remarks) the entry “IMMEDIATE REENLISTMENTS THIS PERIOD: 781215 TO 810927”, and the applicant was awarded or authorized the: * Army Achievement Medal * Army Good Conduct Medal * Army Service Ribbon * Overseas Service Ribbon * NCO Professional Development Ribbon with numeral 1 * Sharpshooter Qualification Badge with M-16 Rifle Bar 18. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 19. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. The applicant’s contentions were reviewed and considered; nevertheless, the evidence shows he was AWOL on 5 occasions; and he received NJP on 5 occasions for disobeying a lawful order, being AWOL, and failing to be at his appointed place of duty. The applicant pleaded guilty and was found guilty by a summary court-martial of 2 specifications of failing to be at his appointed place of duty. Furthermore, court-martial charges were preferred against him for being AWOL on 2 separate occasions and he consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial. He acknowledged he had been advised and understood the possible effects of a UOTHC discharge. The applicant was advised he might be deprived of many or all Army benefits, ineligible for many or all benefits administered by the Veterans Administration and deprived of his rights and benefits as a veteran under both Federal and State laws. He also elected not to submit a statement in his own behalf. b. 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 is normally considered appropriate. c. To justify correction of a military, record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. 20. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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 her characterization of service. Upon review of the applicant’s petition and available military records, the Board determined there is insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The applicant provided no post-service achievements or character letters of support that might have mitigated his characterization discharge. Furthermore, the Board found the applicant’s service record exhibits numerous instances of misconduct during his second enlistment period of 2 years, 7 months and 12 days net service for this period. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. 2. However, during deliberation, the Board determined the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately show his period of honorable service by granting a partial upgrade. 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 amend the DD Form 214 for the period ending 3 May 1984by adding the following entries to item 18 (Remarks): • "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" • "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 781215 UNTIL 810927" 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 an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. 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, 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. In pertinent part: 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 DRBs and 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. 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, 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. 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. 4. Army Regulation 635-8 (Separation Processing and Documents) prescribes policy and procedural guidance relating to transition management. It explains separation document preparation, distribution, correction, and transition processing. The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. A DD Form 214 will be prepared for all Regular Army Soldiers on termination of active duty because of administrative separation (including separation because of retirement or expiration term of service), physical disability separation, or punitive discharge resulting from a court- martial. A DD Form 214 will not be prepared for Soldiers discharged for immediate reenlistment in the Regular Army. For block 18, use this block for Headquarters, Department of the Army, mandatory requirements when a separate block is not available; as a continuation for entries in blocks 9, 11, 13, and 14; or for conditional entries. In pertinent part, the regulation also provides: a. Mandatory entry: "SOLDIER [HAS] [HAS NOT] COMPLETED FIRST FULL TERM OF SERVICE." This information assists the State in determining eligibility for unemployment compensation entitlement. b. To determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment contract and any extensions to those initial enlistment documents and compare the term of enlistment to the net service in block 12c (Net Active Service) of the DD Form 214. If the Soldier has completed or exceeded the initial enlistment, enter "HAS." If block 12c of the DD Form 214 is less than the Soldier's commitment, enter "HAS NOT." c. For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" as a conditional entry and specify the inclusive dates for each period of reenlistment. d. For Soldiers who previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "HONORABLE," enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM [first day of service for which DD Form 214 was not issued] UNTIL [date before commencement of current enlistment]"; then enter the specific periods of reenlistment as prescribed above. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002030 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDING 1