IN THE CASE OF: BOARD DATE: 13 September 2022 DOCKET NUMBER: AR20220002208 APPLICANT’S REQUEST: Reconsideration of his previous request to upgrade his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement (17 pages) FACTS: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130010549 on 16 February 2014. 2. In two self-authored statements, the applicant states he was a good Soldier who did not intend to go absent without leave (AWOL). He called back to his supervisor to say he would be late reporting back to the unit; but was met with cursing, threats and a racial epithet. He affirms that his supervisor made his life a living hell and he was the supervisor's punching bag. He contends that the Military Police (MP) picked him up at home and then dropped him off at a local civilian jail where he would remain for 30 days. He was eventually returned to military control and then shipped to Fort Sill, OK. He was hoping to have his day in court so that he could tell his side of the story and get transferred to another base. He states that he thought he was signing documents that would give him the opportunity to go to court; however, the paperwork was for administrative discharge. 3. A review of the applicant's available service records reflect the following: a. The applicant enlisted in the Regular Army on 29 June 1974. Following completion of required training, he was awarded military occupational specialty 94B (Cook). The highest paygrade he attained was specialist four/E-4. b. He received a certificate of recognition on 12 September 1975, for his outstanding contribution in the performance of his duty. c. On 5 January1976, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to go at the time prescribed to his appointed place of duty on or about 29 December 1975. His punishment included14 days extra duty, forfeiture of $100 for one month, reduction to private first class/E-3 (suspended for 180 days). d. On 29 February 1976, the applicant was reported as AWOL and remained absent until 19 May 1976, when he was apprehended and returned to military control on 22 May 1976. e. Court-martial charges were preferred against the applicant on 28 May 1976, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 29 February 1976 to on or about 18 May 1976. f. On 26 May 1976, the applicant consulted with legal counsel 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. (1) Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 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. (2) He elected not to submit statements in his own behalf. g. The separation authority approved the applicant's request for discharge on 21 June 1976, under the provisions of AR 635-200, Chapter 10, and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). h. Accordingly, the applicant was discharged on 28 June 1976. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged in the lowest enlisted grade in accordance with chapter 10, AR 635-200, and his service was characterized as UOTHC. He was credited with 1 year, 9 months, and 5 days of net active service and was awarded or authorized the National Defense Service Medal. 4. The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge. On 16 August 1983, the ADRB determined that his discharge was both proper and equitable, his request for relief was denied. 5. The applicant petitioned the ABCMR on 19 February 2014, requesting his undesirable discharge be upgraded. The Board voted to deny relief and determined there was no evidence of a procedural error that would have jeopardized his rights. 6. The applicant petitioned the ABCMR for a second time, requesting reconsideration of the previous Board’s denial for discharge upgrade. On 31 October 2016, the staff of the ABCMR reviewed his request for reconsideration and determined that his request was not received within one year of the ABCMR's original decision. As a result, his request for reconsideration was returned without further action. 7. The applicant provides the following: a. Two self-authored statements totaling 17 pages that are his recollection of the work environment during his period of service, relationship with his supervisor, specific details regarding his period of AWOL, and his confinement and subsequent discharge from the Army. b. Certificate of Recognition dated 12 September 1975, recognized his outstanding contribution in winning the “Post Best Mess” award for the Headquarters Company Dining Facility. The citation noted his performance of duty, attitude, appearance, and professionalism. 8. 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 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. 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: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with 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 AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board 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 : : : 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 Docket AR20130010549 on 16 February 2014. 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. d. Chapter 18, currently in effect, provides in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 2. The Manual for Courts-Martial then in effect stated the punishment for violations of Article 86 (AWOL for 30 or more days) included a bad conduct discharge; when the AWOL period was terminated by an apprehension, a dishonorable discharge was authorized. 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) AR20220002208 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20220002208 1 ABCMR Record of Proceedings (cont) AR20220002208 1