IN THE CASE OF: BOARD DATE: 13 June 2023 DOCKET NUMBER: AR20220010764 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT 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, 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 made a mistake when he was young in life that cost him his career. That doesn’t mean that he has to pay for that mistake the rest of his life. Sometimes good people make bad choices. That doesn’t mean that they are bad, it only shows that they are human. We all make mistakes. He received two honorable discharges, first in 1983 and again in 1986. 3. The applicant enlisted in the Regular Army on 14 August 1980 for three years. He served in Germany from 10 December 1980 through 27 July 1983 and from 21 May 1985 through 28 July 1988. He reenlisted on 15 April 1983 and 23 June 1988. 4. The applicant was reported absent without leave (AWOL) on 15 June 1989 and dropped from the rolls as a deserter on 15 July 1989. He surrendered to military authorities on 24 July 1989 at Fort Hamilton, NY. 5. Court-martial Charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ) on 27 July 1989. His DD Form 458 (Charge Sheet) shows he was charged for without authority, absenting himself from his unit on or about 15 June1989 and remaining so absent until on or about 24 July 1989. 6. The applicant acknowledged that he had been counseled regarding the waiver of a physical and declined a physical on 24 July 1989. 7. The applicant consulted with legal counsel on 27 July 1989 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 a UOTHC discharge; and the procedures and rights that were available to him. After consulting with legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, for the good of the service-in lieu of trial by court-martial. 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He did not submit statement in his own behalf. 8. The applicant's commander recommended approval and that he be issued a UOTHC discharge certificate. 9. The separation authority approved the applicant's request for discharge on 25 August 1989 and directed the applicant be discharged UOTHC with reduction to the lowest enlisted grade. 10. The applicant was discharged on 13 September 1989. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service-in lieu of court- martial (Separation Code KFS, Reentry Code 3/3B/3C). His characterization of service was UOTHC. He completed 9 years and 21 days of net active service. He was awarded or authorized, in part, the Army Achievement Medal (2nd Award) and the Army Good Conduct Medal (2nd Award). The Remarks Block listed the reenlistment(s) but not his continuous honorable service. 11. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he would have consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 12. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The applicant was discharged from active duty due to Misconduct- Commission of a Serious Offense. The applicant was AWOL for around 40 days. Although the regulation is clear about the character of service under chapter 10, such short period of AWOL did not warrant an under other than honorable conditions character of service as it seems harsh. Given his prior service and short AWOL, based on a preponderance of evidence, the Board determined that an honorable discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 13 September 1989 showing his character of service as Honorable. * Separation Authority: No Change * Separation Code: NO Change * Reentry Code: No Change * Narrative Reason for Separation: No Change 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, U.S. Code, 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. 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 of that regulation provides, in pertinent part, 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. 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) AR20220010764 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1