IN THE CASE OF: BOARD DATE: 15 December 2022 DOCKET NUMBER: AR20220005292 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) * DD Form 794A (UOTHC Discharge Certificate) 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 he was told that after 10 years his discharge would be upgraded to honorable. He is looking to get assistance and approval for medical insurance through the Department of Veterans Affairs. 3. On 11 January 1979, the applicant enlisted in the Regular Army for a 4-year service obligation. 4. While still in initial entry training the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for disobeying a lawful order given by a commissioned officer, by smoking in formation, on or about 31 January 1979. 5. Upon completion of his initial entry training and award of military occupational specialty (MOS) 67V (Observation Scout), he was assigned to Germany on 25 June 1979, and arrived on or about 30 June 1979. 6. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, for the following offenses: * disobeying a lawful order given to him by a superior to him in grade, on or about 14 July 1979 * unlawfully entering the business establishment, K-Bar, which were an Article 134 violation, on or about 5-6 January 1980. His punishment included reduction to the grade of Private/E-2, 30 days of extra duty and 30 days of restrictions 7. The applicant’s command received notification on 23 July 1980 of his second offense within a year for writing dishonored checks in the amount of $15.82 to the Army and Air Forces Exchange Service. 8. Court-martial charges were preferred against the applicant on 6 October 1980 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with: * operating a military vehicle without being in possession of a valid military operator’s license issued by competent military authority, on or about 30 August 1980 * without proper authority through neglect damaging a structural wall by backing a two-and-a-half-ton truck (M35A2) into the wall, the property of the United States (U.S.) with the damage being in the sum of about $10.00 * operating a two-and-a-half-ton truck (M35A2) while drunk, on or about 30 August 1980 * being drunk and disorderly at a U.S. Military installation known as Storck Barracks, Germany on or about 30 August 1980 * wrongfully communicate a threat to injure a two-fellow soldier by saying to them, “If you say anything, you’re dead’, on or about 30 August 1980 9. Court-martial charges were preferred against the applicant on 5 November 1980 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with: * operating a privately owned vehicle without being in possession of a valid U.S. Army Europe privately owned vehicle operator’s license, on 30 August 1980 * willfully and wrongfully damage by wrecking an automobile the property of another soldier, the amount of damage valued at about $300.00, on or about 27 October 1980 * operate a vehicle, a passenger car, while drunk, on or about 27 October 1980 * wrongfully appropriate a privately owned vehicle belonging to another soldier the value of about $300.00, on or about 27 October 1980 * being drunk and disorderly at a U.S. Military installation known as Storck Barracks, on or about 27 October 1980 10. The applicant’s record is void of a separation packet. However, his DD Form 214 shows he was discharged on 13 March 1981 under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial (Separation Code JFS and Reentry Code 3). He was credited with completing 2 years, 2 months, and 3 days of net active service this period. He was reduced to the lowest enlisted rank. His service was characterized as UOTHC. 11. 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. 12. 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. BOARD DISCUSSION: The Board carefully considered the applicant's request, 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. 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 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. 4. 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) AR20220005292 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1