IN THE CASE OF: BOARD DATE: 14 June 2023 DOCKET NUMBER: AR20220011026 APPLICANT REQUESTS: reconsideration of his prior request to have his undesirable discharge under other than honorable conditions (UOTHC) upgraded to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal statement * DD Form 214 (Armed Forces of the United States Report of Transfer or 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 Docket Number AR20060015001 on 10 May 2007. 2. The applicant states, in effect, his discharge should be upgraded based upon the temperament of the times. He was issued a level three shaving medical profile against shaving at Fort Dix, NJ. Upon his arrival in German, his commanding officer refused to honor the profile. He does not have the profile, but it should be in his medical records. A Jewish Soldier was given a medical discharge, but they destroyed his life. He should have been given at least a general discharge. 3. The available records do not include the applicant's service medical records. 4. The applicant enlisted in the Regular Army on 3 August 1972 and completed training with award of the military occupational specialty 71B (Clerk Typist). The highest grade he held was E-2. 5. The record shows the applicant accepted nonjudicial punishment on 26 September 1972, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave from 1800 hours to 2330 hours on 24 September 1972. 6. Court-martial charges were preferred against the applicant on 5 February 1973 for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with: * failure to go to his place of duty on 25 January 1973 * disobeying a lawful command from a commissioned officer to report for guard duty on 20 January 1973 * disobeying a lawful command from a commissioned officer to report for guard duty on 22 January 1973 * disobeying a lawful command from a commissioned officer to leave the dining facility on 23 January 1973 * disobeying a lawful command from a commissioned officer to report to Captain Sxxx's office at 1730 hours 23 January 1973 * disobeying a lawful command from a commissioned officer to shave his beard on 1 February 1973 * disobeying a lawful command from a commissioned officer to shave his beard on 3 February 1973 7. The applicant consulted with legal counsel on 23 March 1973 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 an under other than honorable conditions discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal 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 lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. 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 Department of Veterans Affairs, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. b. He was advised he could submit any statements he desired in his own behalf; however, the applicant waived this right. 8. Between 23 March and 7 April 1973 the applicant's chain of command recommended approval of his request and recommended he receive a discharge UOTHC. 9. On 10 April 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial; directed that the applicant be reduced to the lowest enlisted grade; and directed that he be issued a discharge UOTHC. 10. The applicant was discharged on 19 April 1973 in the grade of E-1. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635- 200, Chapter 10, for the good of the service – in lieu of court martial and his service was characterized as UOTHC. He was credited with 8 months and 17 days of net active service 11. The Army Discharge Review Board denied the applicant's requests for an upgrade of his discharge on 14 April 1977 and again on 17 January 1980. 12. The ABCMR denied the applicant's request for an upgrade on 10 May 2007 stating the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. As a result, the Board further determined there was no evidence which showed it would be in the interest to excuse the applicant's failure to timely file his application within the 3-year statute of limitations prescribed by law. Therefore, there was insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the applicant. 13. The applicant was charged due to the commission of offenses 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. 14. In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, 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 voluntarily requested discharge for the good of the service – in lieu of trial by court-martial due to significant misconduct. 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. 2. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 8 months and 17 days of net service for this period. 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 to general under honorable conditions. The Board agreed that the character of service the applicant received upon separation was not in error or unjust and 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 to amend the decision of the ABCMR set forth in Docket Number AR20060015001 on 10 May 2007. 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 if the decision has not previously been reconsidered. The applicant must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provided, in pertinent part, 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 discharge UOTHC was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge certificate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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.) AR20220011026 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1