IN THE CASE OF: BOARD DATE: 17 November 2022 DOCKET NUMBER: AR20220004863 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 was told that since he had served 35 months of his 36-month obligation that his discharge would be automatically upgraded. He found out in 2017 that it was not upgraded. His wife was 17 years old, away from family and friends, afraid, and stressed. She took a handful of pills to commit suicide while she was 7 months pregnant. As a result, his son was prematurely developed and had to undergo surgery. He tried to access his son s medical record but was denied access, since his son is now an adult. These medical records would have supported his case. b. He was in and out of the hospital every month. He reached out to his platoon sergeant who showed little concern. This placed a lot of stress on him and his wife. He did what any father and husband would do, he was there for his family. When his son went into the hospital and he was not allowed leave, he went anyway. He was assigned to another unit because of this and was labeled a bad Soldier. He was bothered by the lack of concern from his superiors. He got into an argument with his commissioned officer, which led to an early discharge. 3. The applicant enlisted in the Regular Army on 24 May 1976, for a 3-year term of service. He was awarded military occupational specialty 11B (Infantryman). 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * 19 October 1977, for failure to go at the time prescribed to his appointed place of duty, on or about 5 October 1977, his punishment included reduction to the grade of Private/E-1, forfeiture of $180.00 for one month, and 30 days of correctional custody * 28 February 1978, for failure to go at the time prescribed to his appointed place of duty, on or about 9 February 1978, his punishment included reduction to E-1, forfeiture of $180.00 for one month, and 30 days of correctional custody * 26 June 1978, for failure to go at the time prescribed to his appointed place of duty, on or about 15 June 1978, his punishment included reduction to E-1, forfeiture of $180.00 for one month, and correctional custody (suspended) 5. Orders Number 201-002, issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY dated 20 July 1978 show the applicant was reassigned to Charlie Company, 1st Battalion, 506th Infantry Airborne Division (Air Assault), Fort Campbell, KY with a reporting date of 28 July 1978. 6. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on 23 February 1979, for failure to go at the prescribed to his appointed place of duty, on or about 21 January 1979. His punishment included reduction to Private/E-2, 14 days of restriction, and 14 days of extra duty. 7. A DA Form 3082 (Statement of Medical Condition) dated 16 April 1979 shows the applicant underwent a medial exam on 5 April 1979 and noted he had no changes in his medical condition. 8. Court-martial charges were preferred against the applicant for violations of the UCMJ; however, the relevant DD Form 458 (Charge Sheet) is not available for review. 9. The applicant s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his DD Form 214 shows he was discharged on 18 April 1979, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), Chapter 10. He was credited with completing 2 years, 11 months, and 16 days of net active service this period with 8 days of lost time. His service was characterized as UOTHC. 10. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army voluntarily, willingly, and in writing discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 11. 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. 12. 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: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. The applicant s contentions, the military record, and regulatory guidance were carefully considered. Based upon the pattern of misconduct found within the record, the lack of specific information related ot the misconduct leading to the applicant s separation, and the lack of post-service character evidence submitted by the applicant, the Board concluded there was insufficient evidence of an error or injustice warranting a change to the applicant s characterization of service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx :xx :xx 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 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 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) AR20220004863 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1