IN THE CASE OF: BOARD DATE: 27 January 2023 DOCKET NUMBER: AR20220006590 APPLICANT REQUESTS: 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 Forms 214 (Certificate of Release or Discharge from Active Duty) (two) * Department of Veterans Affairs (VA) Certificate of Eligibility for Loan Guaranty Benefits * Separation Letter * Letter of Debarment * DD Form 256A (Honorable Discharge Certificate) * DD Form 794A (UOTHC Discharge Certificate) * Orders 071-79 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 his first three years of service were honorable, but his second term was UOTHC. He is 63 years old and needs an upgrade for memorial benefits. 3. The applicant enlisted in the Regular Army on 5 July 1977. His military occupational specialty was 11B (Infantryman). 4. The applicant served in Korea from 20 November 1977 through 19 November 1978. 5. The applicant accepted nonjudicial punishment under the Uniform Code of Military Justice (UCMJ) on 30 October 1979, for being absent without leave (AWOL) from on or about 23 October 1979 to on or about 28 October 1979. His punishment consisted of reduction to E-3, restriction, extra duty, and forfeiture of $150.00 pay for two months. 6. The applicant requested a waiver to reenlist due to his period of AWOL. The waiver was approved, and he reenlisted on 23 June 1980, for 4 years. 7. The applicant was reported as AWOL on 16 August 1981. He was dropped from the rolls on 15 September 1981. He surrendered to civil authorities and was returned to military control on 15 January 1982. 8. Court martial charges were preferred against the applicant on 19 January 1982 for violation of the UCMJ. His DA Form 458 (Charge Sheet) shows he was charged with AWOL from on or about 16 August 1981through on or about 15 January 1982. 9. The applicant consulted with legal counsel on or about 20 January 1982 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. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding 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 a bad conduct or dishonorable discharge. 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 VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He elected not to submit a statement in his own behalf; however, his Personnel Control Facility Interview Sheet, dated 18 January 1982 shows he was AWOL because his father died nine months ago and he had been trying to get out for three months, but they did not let him. His mother lived alone at home and she needed his help and support. He told the captain, chaplain, and first sergeant what he was going to do, and they said that they did not blame him for doing it, so he did. He had applied for a hardship discharge, but it was disapproved. 10. The applicant’s chain of command recommended approval of his request for discharge in lieu of court-martial. 11. The separation authority approved the applicant's request for discharge on 28 January 1982, and directed his reduction to the lowest enlisted grade and the issuance of an UOTHC Discharge Certificate. 12. The applicant was discharged on 26 March 1982. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations- Enlisted Personnel), Chapter 10, for conduct triable by court martial. He was discharged in the lowest enlisted grade and his characterization of service was UOTHC. He completed 4 years, 3 months, and 21 days of active service. He lost time from 25 October 1979 to 27 October 1979 and 17 August 1981 to 14 January 1982. He was awarded or authorized the: Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Army Good Conduct Medal, Army Service Ribbon, and the Overseas Service Ribbon. 13. The applicant provides a DVA Certificate of Eligibility for loan guaranty benefits, separation letter and Letter of Debarment, and Orders 071-79, that show he was reduced to private/E-1 and reassigned for separation processing. 14. 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. 15. 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: The Board carefully considered the applicant's request, supporting documents, 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) 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 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 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) AR20220006590 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1