IN THE CASE OF: BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20220001194 APPLICANT’S REQUEST: An upgrade of his characterization of service from under other than honorable conditions (UOTHC) to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the 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 he was young and did not understand the consequences of [receiving an UOTHC discharge]. 3. The applicant honorably completed initial entry training from 15 November 1974 to 12 April 1975 and he was issued a DD Form 214 (Report of Separation from Active Duty) for this period of service. 4. The applicant enlisted in the Regular Army, at age 18, on 17 October 1975, for 4 years. He held military occupational specialty 11C (Indirect Fire Infantryman). 5. On 18 November 1975, while attending advanced individual training at Fort Polk, LA, he accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for having in his possession one bag of marijuana, on 10 November 1975. His punishment consisted of a forfeiture of $80 pay and 7 days in the Correctional Custody at Facility, Fort Polk, LA. He was assigned to Korea from 5 January 1976 to 2 February 1977. 6. On 4 May 1976, while assigned to Korea, he accepted NJP, under the provisions of Article 15, UCMJ, for being absent without leave (AWOL) from 19 to 21 April 1976. His punishment consisted of a forfeiture of $95 pay and 14 days of extra duty, and restriction. 7. Special Court-Martial Order Number 39, Headquarters, 2d Brigade, 2nd Infantry Division, show charges were preferred against the applicant for being AWOL from his unit in Korea from 13-17 May 1976 and from 18 to 24 May 1976. He pled not guilty, and he was found guilty of both charges. On 24 June 1976, he was sentenced to serve hard labor without confinement for 10 days, a forfeiture of $246 pay, and to be reduced from pay grade E-2 to E-1. 8. He also accepted NJP, under the provisions of Article 15, UCMJ, on the following dates: a. On 30 November 1976, for purchasing 128 ounces of mayonnaise, 24 ounces of soluble cream, 64 ounces of cocoa, and 6 bottles of liquor, all being controlled items, in excess of the prescribed limits set out in Appendix E, Eighth Army Regulation (AR) 60-1. His punishment consisted of a forfeiture of $89 pay. b. On 22 December 1976, for purchasing 48 ounces of coffee, 240 ounces of mayonnaise, 96 ounces of soluble cream, 64 ounces of cocoa, 18 ounces of pepper, 8 bottles of liquor, and 244 cans of beer, all being controlled items, in excess of the prescribed limits set out in Appendix E, Eighth AR 60-1. His punishment consisted of a forfeiture of $89 pay. c. On 16 March 1977, for being AWOL from the Adjutant General Replacement Detachment, Fort Ord, CA, from 12 to 16 March 1977, he was assigned to Fort Ord upon his return. His punishment consisted of a forfeiture of $50 pay and 14 days of extra duty (suspended for 30 days). 9. On 1 September 1977, he was counseled for missing company formations on 31 August 1977 and on 1 September 1977. 10. A Standard Form 88 (Report of Medical Examination), dated 19 September 1977, is annotated to show he did not need a physical, a physical was done in March 1977. “He was good for separation.” 11. On 28 November 1977, he accepted NJP, for being AWOL from his unit at Fort Ord, CA, for being AWOL from 19 October to 11 November 1977 until he turned himself in at Fort Richardson, AK. His punishment consisted of a forfeiture of $198 pay for 2 months, and 35 days of restriction, and extra duty. 12. A Report of Mental Status Evaluation, dated 30 November 1977, shows he had no significant mental illness, he was determined to be mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in board proceedings. 13. His charge sheet is not available for review with his case. On 15 December 1977, he was notified that he was being considered for elimination from the service under the provisions of Chapter 13-5a(1), AR 635-200 (Personnel Separations – Enlisted Personnel), for misconduct. He was advised of his rights. 14. On 15 December 1977, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated action to separate him under the provisions of chapter 13, AR 635-200, for unsuitability/misconduct. Additionally, he waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and declined to submit statements in his own behalf. 15. The applicant’s company and intermediate commanders recommended approval of the applicant’s separation under the provisions of chapter 13, AR 635-200, for misconduct. 16. On 9 January 1978, the appropriate authority directed the applicant’s reduction to the lowest enlisted grade and approved separation with an UOTHC discharge. 17. Accordingly, on 13 January 1978, he was discharged. A DD Form 214 that was prepared at the time of separation confirms he completed 2 years, 1 month, and 11 days of active service. His award is listed as the Expert Marksmanship Qualification Badge Rifle. His DD Form 214 also shows in: * Authority and Reason, Paragraph 13-5a(1), AR 635-200, SPD [Separation Program Designator] JKA [Pattern of Misconduct] * Character of Service, Under Conditions Other Than Honorable * Remarks “46 Days of Lost Time Under 10 USC 972: 2 days 19 Apr thru 20 Apr 76; 4 days 13 May thru 16 May 76; 6 days 18 May thru 23 May 76; 3 days 12 Mar thru 14 Mar 77; 23 days 19 Oct thru 10 Nov 77; 8 days 21 Sep thru 28 Sep77” 18. AR 635-200, chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to [unsuitability]/unfitness because of frequent incidents of a discreditable nature with civil or military authorities. Currently chapter 14, paragraph 14-12b, provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. The separation authority may direct a general discharge if such is merited by the Soldier's overall record. 19. Regarding the applicant’s acknowledgement that he was young and did not understand the consequences of receiving an UOTHC discharge. The evidence shows he was age 18 at the time of enlistment. However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service. 20. He completed honorable RA service from 15 November 1974 to 12 April 1975 (4 months and 28 days). He was discharged under the provisions of chapter 13, AR 635-200, for a pattern of misconduct, after receiving six NJP’s and a court-martial conviction. He completed 2 years, 1 month, and 11 day of active military service during this period. 21. 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. 22. 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 age, in support of the petition. ? BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. Based upon the short term of honorable service completed prior to a pattern of misconduct leading to the applicant’s separation, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. 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 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, 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. AR 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability. Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities. b. Chapter 14, paragraph 14-12b, currently provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. c. 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. d. 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. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs 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) AR20220001194 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1