IN THE CASE OF: BOARD DATE: 4 April 2023 DOCKET NUMBER: AR20220008735 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 149 (Application for Correction of Military Record), with self-authored statement, dated 21 June 2022 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 31 July 1972 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 AR2002075469 on 10 September 2002. 2. The applicant states he was young, dumb, and having a hard time dealing with his wife cheating on him while he was in Germany. He did not know where to go or who to talk to for help. As a new contention, he states he enjoyed being in the service and wished he was still in. He is aware his actions were wrong, but it was too late. He has a good standing in his community and would like to be the commander of his local Veterans of Foreign Wars organization. 3. The applicant's service record shows: a. On 24 March 1969, the applicant was inducted into the Army of the United States. Upon completion of his initial entry training and award of military occupational specialty 11B (Light Weapons Infantryman), he was assigned to Fort Hood, TX and arrived on 19 August 1969. b. On 24 October 1969, the applicant accepted non-judicial punishment (NJP), under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for damaging and defacing government property by engraving his initials on a M-14 rifle, on or about 24 October 1969. His punishment included a reduction to Private/E-2, 14 days restriction, and 14 days extra duty. c. On 21 February 1970, the applicant was honorably discharged for immediate enlistment into the Regular Army. He was issued a DD Form 214 for this period of honorable service, and credited with completing 10 months and 27 days of net active service. d. On 21 February 1970, the applicant enlisted in the Regular Army for a 6-year service obligation. e. On 30 September 1970, the applicant was convicted by a special court-martial at Fort Hood, TX, of three specifications of being absent without leave (AWOL) from on or about 22 June 1970 until on or about 30 June 1970, from on or about 13 July 1970 until on about 30 July 1970, and from on or about 5 August 1970 until on or about 8 August 1970. He was sentenced to perform hard labor without confinement for 45 days, 45 days of restriction, forfeiture of $75.00 pay, and reduction to E-1. His sentence was approved on 22 October 1970. f. The applicant accepted NJP, under the provisions of Article 15, of the UCMJ for the following offenses: * on 21 May 1971, for absenting himself from his place of duty, on or about 18 May 1971, and two specifications of disobeying lawful orders on or about 18 and 19 May 1971; his punishment included three days restriction and 14 days extra duty * on 22 June 1971, for absenting himself from his place of duty, on or about 18 May 1971; his punishment included seven days restriction and 14 days extra duty * on 7 January 1972, for being derelict in the performance of his duties on or about 5 January 1972; his punishment included seven days extra duty * on 2 March 1972, for being AWOL from his unit on or about 8 February 1972 until on or about 9 February 1972; his punishment included reduction to Private First Class (PFC)/E3 (suspended for 30 days), that suspension was vacated on 14 March 1972 for another violation of Article 86 of the UCMJ * on 25 March 1972, for unlawfully carrying an illegal weapon (a knife with a blade over 4 inches) g. The previous case indicates on 18 April 1972, the applicant underwent a mental and physical evaluation. The examining physician found him fit for retention/separation. He was found mentally responsible, able to distinguish right from wrong, had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels, and considered mentally competent to participate in board proceedings. h. On 25 April 1972, the applicant was convicted by a summary court-martial at Ferris Barracks, Germany of failing to go at the prescribed time to his appointed place of duty on or about 13 March 1972, and two specifications of being AWOL from on or about 14 March 1972 to on or about 15 March 1972, and from on or about 1 April 1972 to on or about 4 April 1972. He was sentenced to reduction to E-1, forfeiture of $150 pay, and 60 days restriction. His sentence was approved on 26 April 1972. i. The available record is void of the applicant's complete separation processing documents. However, on 21 June 1972, the separation authority approved the applicant's discharge recommendation under the provisions of Army Regulation 635- 212 (Personnel Separations – Discharge – Unfitness and Unsuitability), due to unfitness. He directed the issuance of a DD Form 258A (Undesirable Discharge Certificate) and waiver of rehabilitation. j. On 31 July 1972, the applicant was discharged accordingly. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-212, with Separation Program Number "28B" by reason of unfitness. His service was characterized as UOTHC. He was credited with completing 2 years, 3 months, and 26 days of net service this period, with 43 days of lost time. He was awarded or authorized the National Defense Service Medal and a marksmanship badge. 4. On 10 September 2002, the ABCMR considered the applicant's request for an upgrade of his discharge. The Board determined after careful consideration of his military records and all other available evidence, that he was properly discharged, and denied his request. 5. The applicant provides a handwritten letter as detailed above and a certified true copy of his DD Form 214, for consideration. 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 discharged from active duty for unfitness following a series of misconduct that includes multiple NJPs, AWOL, and two convictions 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 AR2002075469 on 10 September 2002. 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), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued. 3. 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) AR20220008735 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1