IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220006172 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge. He also requests a change to his Separation Code and Narrative Reason for Separation. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number, on 22 June 2010. 2. The applicant states a discharge upgrade is needed to apply for VA (Department of Veterans Affairs) benefits and health care due to injuries endured during service. 3. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 6 March 1978. He completed initial entry training and he was awarded military occupational specialty (MOS) 63H (Automotive Repairman). b. On 14 June 1978, he received a letter of commendation from his training unit commander for his superior performance which culminated in his selection as the outstanding Soldier of his class by his drill sergeants. c. Following completion of training, he served in Germany from on or about 12 January 1978 to around 26 December 1978. d. During November 1978, the applicant sought medical treatment on three occasions following a bus accident that occurred on 2 November 1978. (1) On 2 November 1978, X-rays noted he had fair range of motion, no deformities, a tender spot on his right shin, no edema, and he was able to walk. His injury was diagnosed as a contusion. He was prescribed an Ace wrap, ice, and aspirin, and instructed to return the following morning if the problems persisted. (2) On 3 November 1978, he was seen regarding pain to his left shoulder and left leg resulting from the accident the day prior. It was noted his left leg had no swelling, no discoloration, and no deformities, but his range of motion was limited by pain. It was also noted that his left shoulder had no swelling, no discoloration, and no deformities, his range of motion was good, but he had some tenderness. The X-rays were negative. The injury was diagnosed as a contusion. He was prescribed a pain medication, Robaxin, and an Ace wrap. (3) On 7 November 1978, he informed the person examining him that he had been involved in an automobile accident 5 days prior, but he did not recall how the injury occurred. It was noted his left leg had a small abrasion, with no swelling, no discoloration, no deformities, and his range of motion was good. The injury was diagnosed as a mild contusion. He was issued a temporary profile limiting him to running no greater than one-quarter mile for one week. e. On 6 December 1978, he departed his unit on ordinary leave. However, he did not return from leave. Accordingly, on 26 December 1978, his unit reported him absent without leave (AWOL). f. On 24 January 1979, he was dropped from the rolls (DFR) of the Army as a deserter. He ultimately surrendered to military authorities at 1500 hours on 5 July 1979 at Fort Benning, GA. g. On 9 July 1979, court-martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) shows he was charged with one specification of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL for the period 26 December 1978 to 5 July 1979. h. His chain of command recommended trial by a special court-martial empowered to adjudge a bad conduct discharge. i. On 18 July 1979, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, maximum permissible punishment authorized under the UCMJ, possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. In his request for discharge, the applicant indicated/understood: * he indicated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of bad conduct or a dishonorable discharge * he acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf j. On 19 July 1979, the commander of the U.S. Army Personnel Control Facility, state he had personally interviewed the applicant, who stated his AWOL was caused by family problems due to illness and that he could not cope with his family problems and the Army too. Therefore, he desired to get out of the Army with a less than honorable discharge. The commander recommended approval of his request and the issuance of an Under Other Than Honorable Conditions Discharge Certificate. k. On 1 October 1979, following a legal review and consistent with the chain of commands recommendations, the separation authority approved the applicant's request and directed that he be reduced to the lowest grade, discharged, and furnished an Under Other Than Honorable Conditions Discharge Certificate. l. Headquarters, XVIII Airborne Corps, Fort Bragg, Orders 194-20, dated 4 October 1979, reduced the applicant to the rank/grade of private (PV1)/E-1 and assigned him to U.S. Army Transfer Point, Fort Bragg, for separation processing. m. The applicant was discharged on 11 October 1979. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10 (in lieu of trial by court-martial) with an under other than honorable conditions discharge (Separation Code JFS, Reentry Cod 3B). He had completed 1 year and 27 days of creditable active service with 192 days of AWOL and 84 days of excess leave. n. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. o. On 22 June 2010, the Board carefully considered the applicant’s request for an upgrade and determined to be without merit. The Board stated: (1) The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court- martial. The evidence shows the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial. (2) The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service. (3) The applicant's record is void of any evidence and he did not provide any evidence showing the injuries he sustained in the bus accident contributed to his misconduct. In fact, evidence shows he cited family problems as the catalyst for his period of AWOL and his desire to be separated from the Army. (4) Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge to a general discharge. 4. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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. After 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. 2. The applicant was separated under the provisions of chapter 10, in lieu of trial by court-martial. Absent his AWOL, there would have been no court-martial charges, and absent those court-martial charges, there was no fundamental reason for him to request separation. The underlying reason for his separation is his voluntary request in lieu of trial by court-martial. The only narrative reason authorized for this type of discharge is “In Lieu of Trial by Court-Martial” and the Separation Code associated with this type of discharge is JFS. 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, on 22 June 2010 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) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a states that 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. Paragraph 3-7b states that 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. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states the SPD code of JFS (at the time of the applicant’s discharge) is the appropriate code to assign Soldiers separated under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. 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. 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. 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) AR20220006172 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1