IN THE CASE OF: BOARD DATE: 26 May 2023 DOCKET NUMBER: AR20220010912 APPLICANT REQUESTS: Reconsideration of his request for upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Dockets Number AR20090014277 and AR20130011079 on 17 February 2010 and 27 February 2014, respectively. 2. The applicant did not provide a statement in support of his request. 3. On 30 April 1971, the applicant enlisted in the Regular Army, for 2 years. 4. On 10 September 1971, his request to be reclassified into a non-combat military occupational specialty (MOS) other than that of medic was approved. His records show he was not awarded a MOS. 5. On 17 December 1971, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for disobeying lawful orders, on or about 15 December 1971. His punishment included forfeiture of $50.00 pay and reduction to private/E-2. 6. On 17 March 1972, the applicant accepted NJP under Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty, on or about 28 February 1972 and 2 March 1972; and going absent without leave (AWOL) from on or about 9 March 1972 until on or about 13 March 1972. His punishment included reduction in grade to E-1, forfeiture of $100.00 per month for two months, and 30 days restriction and extra duty. 7. On 11 April 1972, the applicant accepted NJP under Article 15 of the UCMJ, for going AWOL from on or about 3 April 1972 to on or about 4 April 1972. His punishment included forfeiture of $50.00, and 10 days restriction and extra duty. 8. On 21 June 1972, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 9. On 28 June 1972, the applicant's commander notified him of his intent to initiate separation actions against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness for military service. 10. On 30 June 1972, the applicant consulted with legal counsel and acknowledged he had been advised of the basis for the contemplated separation action. Following his consultation, he requested the right to personally appear before, and to have his case considered by a board of officers. He declined to submit a statement in his own behalf and waived his right to further representation by military counsel. He acknowledged he could expect to encounter substantial prejudice in civilian life if given an undesirable discharge. 11. On 5 July 1972, the applicant's commander formally recommended the applicant's discharge, under the provisions of Army Regulation 635-212, by reason of unfitness. As the specific reasons, the commander cited the applicant's chronic AWOL and numerous acts of misbehavior. 12. On 27 July 1972, the applicant accepted NJP under Article 15 of the UCMJ, for going AWOL from on or about 14 July 1972 until on or about 26 July 1972. His punishment included forfeiture of $100.00 per month for two months, and 45 days restriction and extra duty. 13. On 9 August 1972, a board of officers held a hearing to determine if the applicant should be eliminated from service. The Board recommended that he be discharged due to unfitness, with the issuance of an DD Form 258A (Undesirable Discharge Certificate). 14. On 8 September 1972, the applicant accepted NJP under Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty, on or about 30 August 1972 and 28 August 1972; and for going from his appointed place of duty on or about 25 August 1972. His punishment included forfeiture of $65.00 for one month. 15. The separation authority's approval is not available for review. However, consistent with the board’s findings and recommendation the applicant was discharged on 25 September 1972. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-212, separation program number 28B (unfitness). His service was characterized as UOTHC. He completed 1 year, 3 months, and 8 days of net active service, with a cumulative total of 48 days of lost time. 16. The applicant petitioned the ABCMR requesting upgrade of his UOTHC discharge. On 17 February 2010, the Board voted to deny relief and determined that the overall merits of the case were insufficient as a basis for correction of the record. 17. The applicant petitioned the ABCMR a second time, requesting upgrade of his UOTHC discharge. On 27 February 2014, the Board again voted to deny relief and determined that the overall merits of the case were insufficient as a basis for correction of his records. 18. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board noted the applicant failed to provide a statement or supporting documentation. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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 to amend the decisions of the ABCMR set forth in Docket Numbers AR20090014277 on 17 February 2010 and AR20130011079 on 27 February 2014. 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. Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 1-9f provided that an undesirable discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. 3. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued. 4. 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/NR) 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, 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//