IN THE CASE OF: BOARD DATE: 24 February 2023 DOCKET NUMBER: AR20220007101 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 16 April 2022 * Self-authored Statement * Veterans Affairs (VA) Summary of Benefits Letter, dated 11 February 2022 * DD Form 214 (Report of Separation from Active Duty), ending 16 August 1979 * DD Form 214, ending 14 December 1978 * Criminal Record Search * Criminal Record Search 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 that he is 60 percent (%) disabled, receiving 50% disability medical and pay. He received a DD Form 215 (Correction to DD Form 214) on his second discharge, stating it's honorable. The reason he left was because the lady who became his wife after he left, was a single mother with a two year old daughter who was having health issues. At that time he thought that was his only option because she needed his help. Turned out the child had Leukemia. His wife and him have been married 42 years. As you can see by his background check, he has a spotless background. They lived in as homeowners for 33 years and now are residents since 2016. 3. The applicant enlisted in the Regular Army on 15 April 1976, for 3 years. He was discharged on 14 December 1978, for immediate reenlistment. He was issued a DD Form 214 for this period of honorable service. 4. The applicant reenlisted in the Regular Army on 15 December 1978, for Army service school reenlistment option. 5. The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was reported as absent without leave from on or about 27 May 1979 through on or about 4 July 1979. 6. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. 7. The applicant's DD Form 214 shows he was discharged on 16 August 1979, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, with Separation Program Designator "JFS" [for conduct triable by court-martial]. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was credited with 6 months and 23 days of net active service this period, with 39 days of lost time 8. The applicant did not provide, and his in-service records are void of a DD Form 215 supporting his contention that he received an honorable service characterization for his second discharge. 9. The applicant provides the following (provided in entirety for the Board): * A VA summary of benefits letter that shows his character of discharge for the period of 15 December 1978 to 16 August 1979 is considered honorable for VA purposes. * A criminal record search that shows no criminal convictions exist on the applicant. 10. The applicant was charged due to the commission of an offense punishable under the Uniform Code of Military Justice 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. The applicant has provided no evidence that would indicate the contrary. 11. 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 evidence shows the applicant appears to have been charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he presumably 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 and result in an under other than honorable conditions discharge. 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 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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, a UOTHC discharge was normally considered appropriate. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs 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) AR20220007101 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1