IN THE CASE OF: BOARD DATE: 17 January 2023 DOCKET NUMBER: AR20220005116 APPLICANT REQUESTS: Reconsideration of his request for upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170010545 on 25 June 2019. Wherein, the Board denied the applicant's request because the evidence presented did not demonstrate the existence of a probable error or injustice. 2. The applicant states his discharge was very unfair and cruel. 3. The applicant enlisted in the Regular Army on 28 September 1972, for a 3-year term of service. 4. On 6 November 1972, while still in a training status, the applicant accepted non- judicial punishment, under the provisions of Article 15 of the UCMJ for failure to go at the time prescribed to his appointed place of duty, on or about 21 October 1972. 5. Before a special court-martial on or about 22 May 1973, at Fort Benning, Georgia, the applicant was convicted of: * being absent without leave (AWOL), from on or about 13 February 1973 to on or about 28 February 1973 * being AWOL, from on or about 2 March 1973 through on or about 10 April 1973 6. His sentence included reduction to the grade of private/E-1, confinement at hard labor for two months, and forfeiture of $60.00 pay per month for 2 months. The sentence was approved on 5 June 1973. 7. The complete facts and circumstances surrounding the applicant's discharge are not available for review. However, his DD Form 214 shows he was discharged on 13 July 1973, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, with separation program number 28B [unfitness]. His service characterized as UOTHC, and he completed 4 Months and 29 days of net active service with 142 days of lost time. 8. By regulation, action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further efforts is unlikely to succeed. An individual separated for unfitness will be furnished an Undesirable Discharge Certificate. 9. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 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 separation packet is not available for review. However, His DD Form 214 shows he was discharged on 13 July 1973, under the provisions of AR 635-200 for unfitness, with his service characterized as under other than honorable conditions. He completed 4 Months and 29 days of net active service with 142 days of lost time. 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 Number AR20170010545 on 25 June 2019. 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 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 13 of this regulation provided for the procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. 2. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018, 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 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) AR20220005116 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1