IN THE CASE OF: BOARD DATE: 18 April 2023 DOCKET NUMBER: AR20220008873 APPLICANT REQUESTS: His undesirable discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) 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 he had just gotten married, and his wife was homesick. He took her and his daughter home to. As soon as he dropped them off and made sure they were safe, he went back and reported for duty and asked to get out of the service. 3. The applicant enlisted in the Regular Army on 28 January 1975 for 3 years [his DD Form 214 shows 21 January 1976]. He completed training with award of military occupational specialty 11B (Infantryman). 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * 22 April 1975, for wrongfully possession one ounce of marijuana on or about 20 April 1975 * 11 February 1976, for failure to go to his place of duty on or about 1900 hours, 20 January 1976 and on or about 1000 hours on 22 January 1976, his punishment included reduction to E-2 * 22 March 1976, for disobeying a lawful order on or about 9 March 1976; his punishment included reduction to E-1 (suspended for 90 days) 5. His DA Form 2-2 (Record of Court-Martial Conviction) shows he was found guilty by summary court-martial at Fort Hood, TX on 1 April 1976, of two specifications of failure to go to extra duty on or about 21 and 23 February 1976, leaving his place of duty on or about 26 February 1976, and larceny of a poncho liner on or about 23 February 1976. He was sentenced to hard labor without confinement for 45 days and forfeiture of two- thirds month pay (suspended for six months). Approved on 5 April 1976. 6. The applicant’s record is void of his separation processing documents. However, his DD Form 214 shows he was discharged on 17 August 1976, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, with Separation Program Designator code KFS (for the good of the service - in lieu of trial by court-martial). He was discharged in the grade of E-1 and his service was characterized as under other than honorable conditions (UOTHC). He had 1 year, 6 months, and 3 days of net active service with 25 days of lost time and 19 days in excess leave. His awards are listed as the Expert Qualification Badge with Rifle bar. 7. 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. 8. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 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’s separation packet is not available for review. However, other evidence shows the applicant was discharged under chapter 10 (in lieu of trial by a court-martial) of AR 635-200, and his service was characterized as under other than honorable conditions. 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 provides no evidence of post discharge achievements or character reference letters 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 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 sets forth the basic authority for the separation of enlisted personnel. The version in effect at that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 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, an under other than honorable conditions discharge was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge certificate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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 (con.t) AR20220008873 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1