IN THE CASE OF: BOARD DATE: 3 May 2023 DOCKET NUMBER: AR20220005941 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * SF 180 (Request pertaining to military records) 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 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, in effect, he had no legal counsel during any of his court proceedings. 3. The applicant provides an SF 180, dated 6 February 2021, which reflects he requested a copy of his DD Form 214 covering the period of 1972 to 1973. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 24 February 1972. b. Summary Court-Martial Order Number 4, dated 1 September 1972, shows the applicant was arraigned and tried on 9 August 1972 before a Summary Court-Martial. He was charged and found guilty of violation of Uniform Code of Military Justice (UCMJ), Article 86, absent without leave from his unit from on or about 26 June 1972 until on or about 26 July 1972. His sentence consisted of confinement at hard labor for a period of 30 days and forfeiture $75.00 pay per month for one month. The sentence was adjudged on 24 August 1972. c. He accepted nonjudicial punishment as follows: * On 23 January 1973, for failing to go at the time prescribed to his appointed place of duty on 21 January 1973 * On 27 April 1973, for failing to go at the time prescribed to his appointed place of duty on three separate occasions on 16 April 1973, 17 April 1973, and 19 April 1973 d. Special Court-Martial Order Number 50, dated 18 October 1973, shows the applicant was arraigned and tried on 27 August 1973 before a Special Court-Martial. He was charged and found guilty of three specifications of violation of UCMJ, Article 86, absent without leave from his unit from 1 to 22 May 1973, 1 to 25 June 1973, and 24 July to 14 August 1973. His sentence consisted of confinement at hard labor for three months, forfeiture $50.00 pay per month for three months, and reduction to the grade of private/E-1. The sentence was adjudged on 10 October 1973. e. The complete facts and circumstances surrounding his separation are not available for review. However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflects he was discharged on 14 December 1973, under the provisions of AR 635-200, Chapter 13-5a(1), Separation Program Number (SPN) 28B, unfitness, and his service was characterized as under other than honorable conditions. He served 1 year, 4 months, and 10 days of net service this period. He had 161 days lost as follows: 26 June 1972 to 25 July 1972 16 April 1973 to 17 April 1973 1 May 1973 to 21 May 1973 1 June 1973 to 24 June 1973 24 July 1973 to 13 August 1973 10 October 1973 to 13 December 1973 5. There is no evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within the board’s 15 year statute of limitations. 6. AR 635-200, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness. Individuals would be discharged by reason of unfitness with an undesirable discharge, unless the circumstances in a given case warranted a general or honorable discharge, 7. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. ? BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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. 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 attest to his 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. 2. Evidence in the applicant’s record exhibits numerous instances misconduct during his enlistment for 1 year, 4 months, and 10 days of net service this period. ABCMR is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. 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. Therefore, the Board denied relief. 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 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 (Personnel Separations – Enlisted Personnel), then in effect, set forth the basic authority for separation of enlisted personnel for unfitness. Individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined an individual's military record was characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts. a. Paragraph 3-7a states 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 states 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 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. 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) AR20220005941 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1