IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20220003284 APPLICANT REQUESTS: reconsideration of his previous request to: * upgrade his under other than honorable conditions discharge to an honorable discharge * a personal appearance before the Board via video or telephone APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * SF 93 (Report of Medical History) * SF 88 (Report of Medical Examination) * Scholastic Record * Letter Regarding Graduation 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 AR20060009635 on 23 January 2007. 2. The applicant indicates on his application that he was a victim of harassment. He states, in effect, he was very young and like so many, he wishes he could go back in time even though his life is almost over. He has missed out on a lot in his life due to his discharge. He was young and dumb. He messed up his life. He tried to be a good Soldier even with all his private problems. He wishes that his DD Form 214 would be upgraded. 3. The applicant's service records contain the following documents for the Board's consideration: a. DD Form 4 (Enlistment or Reenlistment Agreement Armed Forces of the United States) showing the applicant enlisted in the U.S. Army Reserve (USAR) delayed entry program (DEP) on 10 May 1977 for a period of 6 years. On 12 July 1977 the applicant was discharged from the USAR DEP and entered active duty for a period of 3 years. b. There was no record of when the applicant went absent without leave (AWOL); however, a DA Form 4187 (Personnel Action) shows his duty status was changed from dropped from rolls to present for duty on 5 December 1979. c. FDCF Form 691 (Personnel Control Facility Information Sheet), dated 5 December 1979 shows the applicant entered the Army on 11 July 1977 for a period of 3 years. He was married and had one child. He completed basic combat training on 3 September 1977 and completed advanced individual training on 16 October 1977. He departed from the Army on 3 September 1979. d. FDPCF Form 617 (AWOL-Deserter Verification Sheet) dated 10 December 1979 shows the applicant had a previous Article 15 for being AWOL. e. DD Form 458 (Charge Sheet), dated 12 December 1979, shows the commander of the U.S. Army Personnel Control Facility, Fort Dix, NJ preferred one charge of AWOL from on or about 17 October 1979 to on or about 5 December 1979 against the applicant. f. FDCF Form 691A (Personnel Control Facility Interview Sheet), dated 13 December 1979, shows the applicant stated, in effect: (1) What is the Soldier's Reason for going AWOL? The applicant claimed he came down on levy for Germany, but his wife was sick, and she and his son had no place to stay. He did not want to leave them, so he went home and stayed. (2) What action was taken by the Soldier to remedy problems before going AWOL? He reported to another Soldier and tried to get out of going to Germany but after being told he would have to go, he went AWOL. (3) After going AWOL what action did the Soldier take to eliminate the problem? He returned home and got a job. (4) Why did the Soldier surrender now? He wanted to clean up his status and get it over with. (5) Why is the Soldier not willing to Soldier his way out of this adverse situation? He wanted out and could not afford to leave his family. (6) Additional Comments: If he cannot serve under his conditions he does not want to serve. He was recommended for a Chapter 10 discharge with an under other than honorable conditions discharge. g. On 14 December 1979, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one had subjected him to coercion and counsel had advised him of the implications of his request. He also acknowledged he was guilty of the charge and elected not to submit statements in his own behalf. h. On 11 January 1980 and 15 January 1980, the applicant's chain of command recommended approval of the applicant's request and that he be issued an under other than honorable conditions discharge. i. On 28 January 1980, the appropriate approval authority approved the applicant's request for discharge and directed he receive an under other than honorable conditions characterization of service. j. On 21 February 1980, the applicant was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty), which shows he completed 2 years, 4 months, and 25 days of net active service this period. He had lost time from 8 May 1978 to 4 June 1978 and 17 October 1979 to 4 December 1979. He was not authorized any awards or decorations. He was discharged for conduct triable by court-martial and received an under other than honorable conditions characterization of service. 4. The applicant provides the following documents for the Board's consideration: a. SF 93 dated 7 December 1979, which shows he was in generally good health. c. SF 88 dated 7 December 1979, which shows he was qualified for separation. d. Scholastic Record, which shows the classes he completed throughout school. e. A letter from the Registrar and Principal, dated 18 April 2001, which shows the applicant was granted a high school diploma on 1 June 1978. 5. On 10 June 2006, the applicant completed a DD Form 149 requesting an upgrade of his discharge. On 23 January 2007, the Board determined that the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of the case were insufficient as a basis for correction of the records of the applicant and denied his request. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and 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 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20060009635, dated 23 January 2007. 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) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 2. AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. The regulation required commanders to allow the Soldier a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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) AR20220003284 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1