IN THE CASE OF: BOARD DATE: 16 June 2023 DOCKET NUMBER: AR20220010944 APPLICANT REQUESTS: An upgrade his under other than honorable conditions (UOTHC) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), with a three-page self-authored statement dated 26 July 2021 * Service Certificates (5) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 26 March 1990 * Support Letters dated 15 March 2023 and 17 March 2023 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, in effect: a. He is requesting an upgrade for medical purposes. He describes his entry into service and training history. He contends that he was receiving basic allowance for quarters and separate rations when he was assigned to Fort Bragg, NC because he lived off post with his mother. A noncommissioned officer (NCO) started harassing him about living off post as a private. b. The harassment included telling him to come to formation battle dressed, instead of with his uniform pressed and starched; extra duties like cleaning the motor pool; and having him work charge of quarters (CQ) every weekend. He contends he was called a derogatory racial name in formation by an NCO, got into an altercation with the NCO, and was court-martialed; however, nothing happened to the NCO. He went absent without leave (AWOL) until he was picked up. They offered him the option to stay in the Army, but he refused when they told him he had to return to the same unit. He does not have any service records because they went to his mother's house and took all his documents. 3. On 19 February 1988, the applicant enlisted in the Regular Army for a 3-year service obligation. Upon completion of training and award of military occupational specialty 31M (Multichannel Communications System Operator), he was assigned to Fort Bragg, NC and arrived on 22 November 1988. 4. His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was reported AWOL from his unit at Fort Bragg, NC on 23 February 1989. A DA Form 4187 (Personnel Action) shows he was apprehended by civilian authorities in Fayetteville, NC on 31 January 1990 and retuned to military control the same day. 5. On 5 February 1990, court-martial charges were preferred against the applicant, for violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with absenting himself, without authority, from his unit from on or about 3 February 1989 until 31 January 1990. 6. On 5 February 1990, after consulting with counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. In his request, he acknowledged he was making the request of his own free will, that no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charge, and he was afforded the opportunity to submit a statement in his own behalf. 7. On 9 February 1990, the applicant's commander recommended approval of his discharge request and the issuance of an UOTHC discharge. The commander noted there did not appear to be any reasonable ground to believe the applicant is, or was, at the time of his misconduct, mentally defective, deranged, or abnormal. His intermediate commander concurred with the recommended separation the same day. 8. On 20 February 1990, the separation authority approved the applicant's request for discharge for the good of the service and directed his reduction to the lowest enlisted grade with the issuance of an UOTHC Discharge Certificate. 9. On 26 March 1990, the applicant was discharged accordingly. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of court martial. His service was characterized as UOTHC. He was credited with completing 1 year and 2 months of net active service this period. 10. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. The applicant provides: a. Five-prior service certificates including: two Certificates of Achievement, two Certificates of Training (Basic Training and Advanced Individual Training) and a Certificate of Signal Corps (Regimental) Affiliation b. A letter from his ex-wife attesting that on an unspecified date, the applicant did not harm her. They were just arguing as couples do and that should not be held against him, as he is a great man. c. A letter from an acquaintance attesting she has known the applicant for 20 years as a barber with a good work ethic. He raised a son on his own to keep him out of foster care. The applicant's son was an honor roll student and is currently serving in the Army. 12. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. 13. 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 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 statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board noted upgrade requests are not granted solely for the purpose of the receipt of benefits. The Board found insufficient evidence of in-service mitigating factors for the misconduct 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. ? 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, 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. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs (VA) benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An UOTHC discharge was normally considered appropriate. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRB) and Service 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, 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. 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) AR20220010944 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1