IN THE CASE OF: BOARD DATE: 17 May 2023 DOCKET NUMBER: AR20220011218 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded. Additionally, he requests a DD Form 214 (Certificate of Release or Discharge from Active Duty) that clearly shows his Social Security Number (SSN) and updated Reentry Eligibility (RE) Code. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Forms 215 (Correction to the DD Form 214) (two) * Letters of Support (two) 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 an upgrade of his character of service to at least under honorable conditions (general) with his updated RE code is just. He feels the character of service he was given was a judgement call on the part of the command at the time. He could have just as easily been given a general discharge. He takes responsibility for his actions as young man and wishes he had made better choices when he was in the Army. He has been a productive, law bidding individual for most of his life, and he is seeking to clear up the blemishes of his youthful poor choices. He feels his request warrants a new DD Form 214. 3. The available record does not include a copy of the applicant's enlistment documents. However, his DA Form 2-1(Personnel Qualification Record – Part II) shows he had prior service in the U.S. Army Reserve and enlisted in the Regular Army on 2 April 1980 for a 3-year period. 4. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * 19 November 1980, for disobeying a lawful order from a commissioned officer and willfully damaging military property on or about 14 November 1980 * 7 February 1981, for disobeying a lawful order from a commissioned officer on or about 26 January 1981; his punishment included reduction to E-2 * 18 May 1981, for being absent without leave from on or about 25 April 1981 to on or about 30 April 1981; his punishment included reduction to E-1 5. The applicant's immediate commander notified the applicant on 3 June 1981, of his intent to initiate actions to separate him under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), Chapter 14, for misconduct – frequent incidents of a discreditable nature with military authorities. 6. The applicant consulted with legal counsel on 8 June 1981. He was advised of the basis for the contemplated discharge, the possible effects of an UOTHC discharge, and the procedures and rights that were available to him. He waived his administrative rights and elected not to submit a statement in his own behalf. 7. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct, citing his NJPs and recommending waiver of further rehabilitation measures. 8. He requested to be and was placed on excess leave pending completion of his discharge proceedings on 19 June 1981. 9. The separation authority, consistent with the chain of command recommendations, approved the recommended discharge action. He directed the applicant be issued an UOTHC Discharge Certificate. 10. The applicant was discharged on 21 September 1981, in the grade of E-1. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635- 200, paragraph 14-33b, for misconduct frequent incidents of discreditable nature with civil or military authorities. His service characterization was UOTHC with RE code RE-4. He was credited with 1 year, 5 months, and 4 days of net active service with 94 days of excess leave. He is shown to have had 3 periods of lost time totaling 14 days. 11. The applicant provides: a. Two DA Forms 215, which show his SSN was corrected and his RE code was changed to "RE-3, RE-3B, and RE-3C", on 18 March 1982 and 14 February 1983, respectively. b. Two letters of support that describe him as a man of the highest level of personal and moral character, someone who is often sought out for spiritual advice and understanding due to his morals. He had been a model employee working his way from Riverboat Deck Hand, to Mate, Pilot, and to Riverboat Captain. He is a church leader and Sunday School teacher. 12. Regulatory guidance provides that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. RE code "3" applies to Soldiers who are not considered fully qualified for reentry unless a waiver is granted. 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: 1. 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 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 determined correction the applicant’s DD Form 214 for his SSN and Re Code was previously completed with two DD Form 215’s dated 18 March 1982 and 14 February 1983. The Board agreed there is no action required for his portion of the applicant’s request. 2. The Board found sufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board determined, the applicant’s discharge of an under other than honorable discharge was harsh based on the applicant’s misconduct and found an upgrade to a general under honorable conditions was warranted. Therefore, the Board granted relief. ? 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 amending the applicant’s DD Form 214 for the period ending 21 September 1981 showing his characterization of service as general under honorable conditions. 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 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 3. 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 14 (Separation for Misconduct) established policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Paragraph 14-33b(1), provided for separation for patterns of misconduct due to frequent incidents of discreditable nature with civil or military authorities. 4. 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.) AR20220011218 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1