IN THE CASE: BOARD DATE: 31 October 2022 DOCKET NUMBER: AR20220002958 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Individual Soldier’s Report * DA Form 2627 (Record of Proceedings under Article 15) * DA Form 268 (Report for Suspension of Favorable Personnel Actions) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Veteran Service Officer (VSO) Letter 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 he was told that after one year his discharge would be upgraded to an honorable discharge. He does not think it was ever changed. 3. The applicant enlisted in the Regular Army on 16 September 1982, for a 4-year term of service. The highest rank/grade he attained was private first class/E-3. 4. The applicant received a positive monthly counseling on 29 April 1983. 5. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * 22 June 1983, for failing to be at his appointed place of duty, at the time prescribed on or about 18 June 1983 and 21 June 1983 * 28 September 1983, for failing to go to his appointed place of duty, on or about 12 September 1983 6. The applicant was formally counseled on 1 June 1982, for reasons including but not limited to: being late for formation, two summary Article 15’s, and poor attitude. 7. The applicant accepted NJP under the provisions of Article 15 of the UCMJ, on the following dates: * 1 June 1984, for failing to go at the time prescribed to his appointed place of duty, on or about 24 May 1984; his punishment included reduction to E-2 * 26 June 1984, for stealing meals, the military property of the U.S., on or about 12 June 1984; his punishment included reduction to E-1, forfeiture of $139.00 (suspended), 14 days of restriction and extra duty 8. The applicant was formally counseled on 28 June 1984, for reasons including but not limited to, his previous four Article 15’s and recommendation for elimination from service. 9. The applicant’s commander received a letter of indebtedness dated 29 June 1984, which indicated the applicant was past due on his rent. He was delinquent in paying rent for the months March and June 1984, with delinquency fees. 10. A DA Form 3822-R (Report of Mental Status Evaluation), dated 18 July 1984 shows the applicant had the mental capacity to understand and participate in administrative proceedings deemed appropriate by his command. 11. The applicant accepted NJP under the provisions of Article 15 of the UCMJ, on 17 August 1984, for willfully disobeying a lawful order from his superior non- commissioned officer, on or about 15 August 1984. 12. The applicant's commander notified the applicant on 26 July 1984 of his intent to initiate actions to separate him from service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, for pattern of misconduct. 13. The applicant consulted with counsel on 27 August 1984 and was advised of the basis for the contemplated actions to separate him and of the rights available to him. He acknowledged his understanding and waived consideration of his case by, and personal appearance before, a board of officers. He elected to submit a statement in his own behalf, wherein he stated: (1) His First Sergeant is using his summary Article 15’s for the same punishment, saying it seems like a habit. Him being late is not a habit, other Soldiers were late also. His common skills scores are always good, he does not smoke or drink. If he gets chaptered out it will not help especially by giving him a bad discharge. (2) He would like to be moved back to the U.S. with his family and given another chance. He can also be reassigned to another unit, but he does not want to get out the military. He knew it was wrong to go through the line and he was on separate rations. He will pay the $2.15, if that will help him stay in the Army. 14. On 26 July 1984, the applicant's commander formally recommended the applicant's separation from service, under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct - patterns of misconduct. 15. On 20 September 1984, the separation authority approved the recommended action and directed the applicant's reduction to the lowest enlisted grade with his service characterized as UOTHC. 16. The applicant was discharged on 12 June 1979. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, [Chapter 4] by reason of misconduct - pattern of misconduct. His service was characterized as UOTHC and he was credited with 2 years and 10 days of net active service. 17. The applicant provides: a. An individual Soldier’s Report which indicates he had potential training weaknesses in 12 soldier specific tasks. b. VSO letter, dated 24 November 2021, providing observation and advocation on the applicant's behalf. It states, the applicant will eventually need the Department of Veterans Affairs (VA) healthcare system and a general, under honorable conditions discharge will allow him access to VA services. 18. In reaching its determination, the Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered applicant’s contentions, military record and regulatory guidance. The Board noted the frequency and type of misconduct. One possible outcome was to deny relief. However, the majority of Board members determined that even though documentation available for review shows that the applicant received multiple counselings, they were more indicative of the applicant being unsuitable for military service than so severe as to warrant a under other than honorable conditions. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for relief. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : 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 the applicant a DD Form 214 for the period ending 12 June 1979 showing • Characterization of Service: Under Honorable Conditions (General) • Separation Authority: No change • Separation Code: No change • Reentry (RE) Code: No change • Narrative Reason for Separation: No change 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. ADMINISTRATIVE NOTE(S): A review of the applicant's records shows his DD Form 214 erroneously states that the separation authority as "Chapter 4" of Army Regulation 635-200. His DD Form 214 for the period ending 25 September 1984 should be administratively corrected to show in Block 25 (Separation Authority): Army Regulation 635-200, Chapter 14. 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 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A UOTHC discharge was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court- martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20220002958 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1