IN THE CASE OF: BOARD DATE: 26 May 2023 DOCKET NUMBER: AR20220011307 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . Self-authored Statements (two) . Character Reference Letters (five) . Counsel Authorization Letter 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, in effect, states: a. He was charged with aggravated assault, when he hit another Soldier with a bottle, after he got hit with a bed post. The other Soldier went absent without leave before the court-martial, so there was no victim to press charges. He was trying to get home to take care of issues, so he accepted the charges of another Soldier, who wanted to stay in the Army, for stealing a Jeep. He did not steal the Jeep and was offered a Chapter 10 discharge. He was soon busy working and helping his mother who was 67 years old and struggling with bills and health issues. b. In June 1974, with the help of his father, he opened an auto parts store and had a fair amount of success. They built a building, employed maybe 50 or so people through the years and served the community well. He has attended church and served on many committees. He has also belonged to some non-profit charitable organizations and helped several single mothers. He has learned that honesty and hard work will pay off. He has not had any legal trouble and tries to treat people the way he wants to be treated. He has faith in God and believes Jesus Christ is his savior. 3. On 20 October 1972, the applicant was inducted into the Army of the United States, for two years. Upon completion of training, he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic). 4. On 7 March 1973, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to report to his appointed place of duty, on or about 6 March 1973. His punishment included forfeiture of $60.00 for one month. 5. On 13 June 1973, the applicant accepted NJP under Article 15 of the UCMJ, for wrongfully appropriating a truck of a value of $4050.00, the property of the U.S. government, on or about 6 June 1973. His punishment included reduction to E-1, forfeiture of $50.00, and restriction for 7 days. 6. Court-martial charges were preferred against the applicant on 19 July 1973 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with disobeying a lawful order from his superior noncommissioned officer, on or about 2 July 1973; being disrespectful in language to his superior noncommissioned officer, on or about 2 July 1973; committing an assault on a Soldier by intentionally inflicting grievous bodily harm, on or about 2 July 1973; and being drunk and disorderly, on or about 1 July 1973. 7. The applicant consulted with legal counsel on or about 19 July 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 a bad conduct discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions 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 Veterans Administration, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. b. He declined to submit a statement in his own behalf. 8. On 23 July 1973, the applicant's commander recommended approval of the applicant's request for discharge, and further recommended the issuance of an undesirable discharge. 9. Consistent with the chain of command’s recommendations, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 2 August 1973, and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 10. The applicant was discharged on 15 August 1973. His DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 10, with Separation Program Number 246 (for the good of the service – in lieu of trial by court-martial). He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 9 months and 26 days of net active service this period. 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 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. 12. The applicant provides five character reference letters that collectively attest to his leadership, work ethic, trustworthiness, and good reputation. Several letters speak of the support that he provides to his church. These letters are provided in their entirety for the Board’s review within the supporting documents. 13. 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 statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. One possible outcome was to provide relief based upon the letters of support. However, the Board majority found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements to weigh a clemency determination. Based upon a preponderance of evidence, the Board majority 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 : : :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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 three 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 three-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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided 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 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 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, 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//