IN THE CASE OF: BOARD DATE: 14 February 2023 DOCKET NUMBER: AR20220006954 APPLICANT REQUESTS: Reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 26 October 1983 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 AR20160015213 on 9 July 2019. Where the Board determined the applicant’s characterization of service was neither in error nor unjust and denied his request for relief. 2. As a new argument, the applicant states he has been an outstanding citizen for nearly 39 years. He was a young man with numerous problems at his duty station, he regrets the decisions he made as a young Soldier, and would like his discharge upgraded. On the applicant's DD Form 293, he notes that reprisal/whistleblower is related to his request; however, he does not elaborate on this issue. 3. The applicant's service record shows: a. On 2 August 1977, the applicant enlisted in the Regular Army for 3 years. Upon completion of training, he was awarded military occupational specialty 64C (Motor Transport Operator). On 25 March 1980, he was honorably discharged for immediate reenlistment. b. On 26 March 1980, he reenlisted for a 3-year service obligation. He was promoted to Specialist Five (SP5) on 5 June 1981. He arrived at his duty station at Fort Wainwright, AK, on or about 9 June 1982. c. On 20 September 1982, the applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for willfully disobeying a lawful order from his superior commissioned officer, on or about 3 September 1982. His punishment included 14 days restriction and extra duty. d. On 20 July 1983, the applicant accepted NJP, under the provisions of Article 15 of the UCMJ, for while being a married man wrongfully having sexual intercourse with a married woman, not his wife, on or about 9, 16, 22 and 24 April 1983. His punishment included reduction to E-4, extra duty for 30 days, and restriction. e. On 19 August 1983, the Battalion Chaplain wrote a memorandum for record, wherein he recommended the applicant be administratively discharged and noted the following: "To require the two children involved to testify would cause additional trauma, especially for the child who now resided in . The possible disillusionment of his marriage, coupled with the events of the past year relating to other negative events, to include this charge, indicate psychological help is necessary. The chaplain recommended swift action be taken to separate under the provisions of Chapter 10 and if possible, psychological counseling be ordered." f. On 24 August 1983, court-martial charges were preferred against the applicant for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with: * one specification of taking indecent, and improper liberties with a female under 16 years of age, by untying the straps of her jumpsuit, and exposing and staring at her chest, with the intent of gratifying his sexual desires between May and September 1982 * one specification of committing a lewd and lascivious act upon the body of another a female under 16 years of age, by fondling her genitals with his hand, with the intent of gratifying his sexual desires during April 1983 g. Subsequent to receiving legal counsel on 6 September 1983, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He elected to submit a statement in his own behalf; however, no statement is available for review. h. On 6 September 1983, the applicant's commander recommended approval of his request for separation under the provisions of AR 635-200, Chapter 10, for the good of the service with an UOTHC discharge. i. On 6 September 1983, his intermediate commander recommended approval of his request for separation, with an UOTHC discharge. The commander noted his primary consideration was "the potential for lasting emotional harm to the victims if they are required to testify at trial. Although trial by court-martial is preferable for such serious offenses, the witness problems involved dictate administrative disposition." j. On 4 October 1981, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, for the good of the service. He directed the applicant be reduced to the lowest enlisted grade and issued an UOTHC discharge. k. On 26 October 1983, the applicant was discharged. His DD Form 214 confirms he was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service. His service was characterized as UOTHC. He was credited with completing 6 years, 2 months, and 25 days of net active service this period. He was awarded or authorized the Army Service Ribbon, Good Conduct Medal, and a Drivers Badge. 4. The ABCMR considered the applicant's request for a discharge upgrade on 9 July 2019. In the processing of that case the Army Review Boards Agency (ARBA) Medical Advisor provided an advisory opinion that the applicant had no mitigating Behavioral Health factors or conditions. The Board found he was properly and equitably discharged and denied his request. However, due to regulatory changes his DD Form 214, was amended to add "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 770802 - 800325" and he was issued a DD Form 215 (Correction to DD Form 214). 5. The applicant was charged due to the 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 Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 6. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 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 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. 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 AR20160015213 on 9 July 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 10 provided 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, an UOTHC discharge was normally considered appropriate. 2. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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) AR20220006954 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1