IN THE CASE OF: BOARD DATE: 14 July 2022 DOCKET NUMBER: AR20220000457 APPLICANT’S REQUEST: Upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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: a. He had a wife and son when he enlisted in the Army. His wife was pregnant with their second child and he planned to be a lifer. His family was with him while he was stationed at Fort Sill, OK. He received orders to go to Korea and took his wife and child to where she was from. His wife stopped getting benefits and he tried to get the benefits going with the help of his superior officer. b. This went on for four to six months, with their families helping as much as they could. His wife sent him a letter informing him that she was having an affair with a neighbor. He was sent home on emergency leave and tried to correct the situation by moving his wife to another place and he got a job. At this point he was considered absent without leave (AWOL). His wife was no help to him and provided no support for him to go back to the Army. He turned himself in after several months, feeling embarrassed, lost, and confused at this point. c. After going through all of that the marriage did not work and he moved back to. He was eventually able to get his life back on track. He became a project manager for an environmental company for 27 years. He received licensing to deslag explosives for power plants, and permits to clean up radioactive sludge from, as well as uranium tailings from. 3. The applicant enlisted in the Regular Army on 4 June 1971. He was honorably discharged on 17 June 1971 for the purpose of immediate reenlistment. He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period that confirms his service was characterized as honorable. 4. The applicant reenlisted in the Regular Army on 18 June 1971, for a period of 3 years. He was awarded military occupational specialty 13A (Cannoneer). 5. Court-martial charges were preferred against the applicant on 13 March 1973 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with two specifications of being AWOL from on or 16 September 1972 through 25 January 1973 and on or about 2 February 1973 to 11 March 1973. 6. The applicant consulted with legal counsel on 14 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 a UOTHC 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. 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 elected to submit statements in his own behalf wherein he stated that he would go AWOL again if he was not let out of the Army. 7. The separation authority approved the applicant's request for discharge on 16 May 1973, under the provisions of Army Regulation 635-200, Chapter 10, and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 8. Accordingly, the applicant was discharged on 23 May 1973. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was credited with 1 year, 5 months, and 10 days of net active service and was awarded or authorized the Armed Forces Expeditionary Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16). 9. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. The available evidence shows the applicant reenlisted and was later 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. b. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement (circumstances regarding the period of AWOL), his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. 2. The Board found the applicant’s statement regarding the circumstances that led to his periods of AWOL and his description of his post-service achievements sufficient evidence to support clemency. Based on a preponderance of evidence, the Board determined the applicant’s character of service should be changed to under honorable conditions (general).. 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 reissuing his DD Form 214 for the period ending 23 May 1973 to show his character of service as under honorable conditions (general). 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, USC, 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 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) AR20220000457 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20220000457 1 ABCMR Record of Proceedings (cont) AR20220000457 1