IN THE CASE OF: BOARD DATE: 9 May 2023 DOCKET NUMBER: AR20220010144 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Statement in Support of Claim * Attorney Brief * VA Statement in Support of Claim (four) * Character Letter 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 through counsel, he received an UOTHC discharge under persistent misconduct due to being absent without leave (AWOL). He went AWOL when his mother died to care for his siblings. They believe this to be compelling circumstances that would qualify as an exception to the statutory bar. 3. Counsel reiterates the above and states the VA made a determination stating that they would not change the applicants discharge determination due to him not approaching his leadership with his issue. At the time, the applicant’s commander was someone who he was aware of being from his hometown area. Yet his commander was white while the applicant is African American. At the time, he felt that he could not approach him due to the racial differences and felt his concerns for his family would be dismissed. He also was in such an anxious state concerning his minor siblings that his only goal was to get home to them to care for them in his mother's absence. We believe these considerations mitigate the nature and character of his discharge. We ask that his discharge be reviewed in light of this evidence, and he be granted a general discharge revision in the interests of justice and correcting the wrongs of an unfortunate situation. 4. The applicant enlisted in the Regular Army on 2 May 1974 for 3 years. His military occupational specialty was 76Y (Unit Supply Specialist/Armorer). 5. The applicant was AWOL on 16 December 1975, dropped from the rolls on 15 January 1976, and present for duty on 29 January 1976. He surrendered to military authorities at Fort Benning, GA. 6. The applicant was again AWOL on 4 February 1976 and dropped from the rolls on 3 March 1976. He surrendered to military authorities and was returned to military control on 23 April 1976. 7. Court-martial charges were preferred against the applicant on 23 April 1976 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with two specifications of AWOL from on or about 16 December 1975 to 15 January 1976 and from on or about 4 February 1976 to 3 March 1976. 8. The applicant consulted with legal counsel 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. After consulting with 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. 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 and he may expect to encounter substantial prejudice in civilian life due to an undesirable discharge. b. He elected not to submit statements in his own behalf. 9. The applicant’s immediate commander recommended approval of his request for discharge under the provisions of Chapter 10, Army Regulation 635-200 on 28 April 1976. The applicant’s chain of command recommended approval of the request for discharge and recommended the issuance of an undesirable discharge certificate. 10. A Report of Mental Status Evaluation, dated 18 May 1976, shows the applicant had the mental capacity to understand and participate in board proceedings and met retention standards. There had been no change in the applicant’s medical condition. 11. The separation authority approved the applicant's request in lieu of court-martial on 17 May 1976 and directed his reduction to the lowest enlisted grade with the issuance of an Undesirable Discharge Certificate. 12. The applicant was discharged on 14 June 1976. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, with separation program designator code KFS (for the good of the service-in lieu of court martial). His characterization of service was UOTHC. He completed 1 year, 8 months, and 18 days of net active service and 146 days of lost time. 13. 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. 14. The applicant provides: a. A VA Statement in Support of Claim, dated 12 October 2021, wherein the applicant states he requests his discharge be reviewed for benefits purposes. Upon joining the military his mother passed away suddenly and he was left as the oldest to take care of his three youngest siblings. While he was in the military, he still had the financial burden of providing for his siblings because they had to get through school. Education was a very big deal for all of them before his mother passed, so he made the sacrifice to join the military during the Vietnam war era to try to provide for his siblings. He has numerous health issues such as prostate cancer, hypertension, a stroke in 2020, and back surgery. b. A VA Statement in Support of Claim, dated 15 October 2021 from attests the applicant has been there for him and his family and he has known the applicant his whole life and he is an upstanding person who always give back in the church or out in the community. c. A VA Statement in Support of Claim, dated 16 October 2021 from states he has known the applicant for twenty years and the applicant is a kind and generous man who shows great hospitality and gives collard greens, etc. from his garden to the homeless. d. A VA Statement in Support of Claim, dated 16 October from attests the applicant endured a lot of responsibility after his mother passed and his siblings attended school graduation and some went on to college, trade school and the army. He is a very family- oriented man. e. A VA Statement in Support of Claim, dated 21 October 2021 from states he has known the applicant over 50 years, attests to the applicant’s honesty, helpfulness intelligence and good work ethics. f. A Character letter from attests he has known the applicant sixteen years and the applicant is an extremely dedicated person; active member of his church and his work ethics and moral values speak volumes. He is dependable and puts forth every effort to provide the optimum level of service in everything he dies. He is a true asset to his community. 13. In reference to benefits, decisions of the VA are solely within the jurisdiction of that agency. While the ABCMR can correct errors in an individual's military records it has no authority to direct or influence decisions by other agencies. 14. 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: After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 provided some statements in support of a clemency discharge. Although these statements are in support of a VA claim, the Board accepted them as character reference statements from individuals who know the applicant and speak of his character. The Board determine that although his service did not rise to the level required for an honorable discharge, a general, under honorable conditions characterization of service is appropriate under DoD guidance for liberal consideration of discharge upgrade requests. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 14 June 1976 showing his character of service as Under Honorable Conditions, General. * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change * Narrative Reason for Separation: No Change. 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 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. 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) AR20220010144 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1