IN THE CASE OF: BOARD DATE: 9 May 2022 DOCKET NUMBER: AR20220000193 APPLICANT REQUESTS: in effect, reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement, dated 3-August 2021 * funeral services program, dated 2 October 1976 * Veteran Affairs (VA) Regional Office, Administrative Decision, dated 27 June 1978 * page 3 of Army Board for Correction of Military Records (ABCMR) Memorandum of Consideration AC95-11934, dated 8 May 1996 * Department of Veterans Affairs (DVA) letter, dated 7 December 2020 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 AC95-11934 on 8 May 1996. 2. The applicant stated he wants to bring back the dignity in his name for his kids and family. He has suffered long enough and he was only 18 years old at the time. He was a proud Soldier who wanted to serve his country but had other issues he could not control. a. In a self-authored letter he stated his initial request to obtain and correct his DD Form 214 began in 1995. Evidence shows he was a good Soldier and performed his duties to the best of his abilities. His desire to return home was not out of convenience but, to support his family. b. His mother was a single mom and had become an alcoholic. He also had four younger siblings as he was the oldest, 18 at the time. His family can attest that he returned home resentful and angry. To this day he has those same issue, as his life was not the same afterwards. The process of trying to correct his DD Form 214 all of these years has been stressful. His superiors did not provide him with an alternative. 3. He enlisted in the Regular Army on 11 August 1976. He held military occupational specialty 31N (Tactical Circuit Controller). 4. He provides a funeral service's program, dated 2 October 1976, whereon the applicant included a hand-written note in blue ink, which reads, "GRAND MOTHER WAS SHOT & KILLED WHILE I WAS IN THE SERVICE." 5. He was promoted to private first class on 1 April 1977 (highest grade satisfactorily held). 6. He received non-judicial punishment on 15 July 1977, for disobeying a direct order from a superior commissioned officer, not to go into the enlisted women's rooms at any time, in that he did on or about 6 July 1977, disobey this order. He was formally reprimanded, the reprimand states, "that at no time are you to be in an [enlisted woman’s] room. 7. His record contains a disposition form from the Battalion Chaplain, which states in effect, that the applicant had sought counseling for a family problem and over disciplinary action. He went Absent Without Leave (AWOL) on 6 September 1977 to help his mother, who has a severe drinking problem. While gone, he contacted his unit twice; once via the Red Cross and once via phone call. He was encouraged to return to the unit, which he did on 2 November 1977. a. His father and mother have been separated for a number of years. The applicant is the oldest child, and he feels responsible for looking out for a sick mother and four younger siblings. b. Up until this incident, he has had a clean record. However, he no longer sees a future for himself in the Army. The mistake he made and his family problems weigh upon him and he no longer feels motivated to continue in service. The chaplain recommended the applicant receive a separation under the Expeditious Discharge Program (EDP). 8. On 19 November 1977, court martial charges were preferred. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of absent without leave for a period of 56 days from 6 September 1977 through 4 November 1977. 9. On 5 December 1977, he voluntarily requested discharge for the good of the service under the provisions of (UP) Chapter 10, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). He acknowledged that he understood that he could request discharge for the good of the service because charges were preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge. He was making this request of his own free will and had not been subjected to any coercion whatsoever by any person. He was advised of the implications that are attached to it. By submitting this request for discharge, he acknowledged that he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorize(d) the imposition of a bad-conduct or dishonorable discharge. Moreover, he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service. a. Prior to completing his request for discharge form, he was afforded the opportunity to consult with appointed counsel for consultation. He consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offense(s) with which he was charged, any relevant lesser included offense(s) thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appeared to be available at that time; and the maximum permissible punishment if found guilty. Although he has furnished me legal advice, this decision was the applicant's own. b. He understood that if his request for discharge was accepted, he may be issued an Under Other than Honorable Conditions Discharge Certificate. He was advised and understood the possible effects of a discharge under other than honorable conditions and that, as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also understood that he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions. 10. On 8 and 9 December 1977, his chain of command recommended he be discharged UP of AR 635-200, chapter 10, with the issuance of an under other than honorable conditions discharge. 11. On 14 December 1977, the separation authority approved his request for discharge for the good of the service. He directed a discharge under other than honorable conditions and that he be reduced to the lowest enlisted grade. 12. Accordingly, he was discharged on 5 January 1978. His DD Form 214 shows he completed 1 year and 3 months of total active service this period. He had 56 days of lost time from 6 September 1977 thru 3 November 1977. He was awarded or authorized the Expert Marksmanship Qualification Badge (Rifle). 13. He provides a letter from the Army Discharge Review Board (ADRB), dated 5 January 1978, which provided him instructions for applying to the ADRB. 14. The applicant applied to the Army Discharge Review Board for a discharge upgrade on 20 September 1995. The date of his application was beyond that board's 15-year statute of limitations and, therefore, his request was not considered. 15. On 8 May 1996, in ABCMR Docket Number AC95-11934, the Board considered his application but determined that after reviewing the application and all supporting documents, that relief was not warranted. The Board denied his request. 16. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published Department of Defense guidance for liberal consideration when reviewing discharge upgrade requests. The Board noted the multiple offenses leading to the applicant’s separation and the absence of evidence attesting to post-service achievements or letters of reference to weigh in support of a clemency determination. Based on the preponderance of the evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for 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 the Army Board for Correction of Military Records (ABCMR) Memorandum of Consideration AC95-11934, dated 8 May 1996. 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 (AR) 635-200 (Personnel Separation – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who 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 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 charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. b. Paragraph 3-7a provides that 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. c. Paragraph 3-7b provides that 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. 2. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and BCM/NRs 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) AR20220000193 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1