IN THE CASE OF: BOARD DATE: 19 September 2023 DOCKET NUMBER: AR20230001970 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge and restoration of his rank/grade to specialist four/E-4. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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: a. His discharge should be changed because it was based on one isolated incident in 1 year and 10 months, with no other adverse action. He is sorry but, before his being absent without leave (AWOL), he was an honest and honorable Soldier. He would like to become an honorable Soldier again. Forgive him. He was going through a hardship at home, and nobody seemed to give a darn. He asked for help and was told no, while others with less problems were told yes. He was in Germany at the time. After repeatedly asking for a little time off and being told no he left and was AWOL. b. After his short AWOL, he turned himself in at Fort Benjamin Harrison, IN, and went back to Germany to finish his tour. He requests the injustice be corrected. He was ordered to Germany for 18 Months, after he got there, he was told he had to extend his enlistment and stay for 3 years, or expiration term of service. He wanted to extend but was told his family could not come. He was having family problems, his wife had a nervous condition, and he couldn't be away that long. He asked to be stationed back in the U.S. or receive a discharge for hardship. He was told no, while Soldiers of no color were being granted their request. So, he left again. He loved the military life but not the way he was be treated, it was just not right. That's why he believes the record to be unjust. It is the right thing to do after all these years. Right the wrong and let him finally get some justice. He is too old to reenlist but wishes he could. 3. The applicant enlisted in the Regular Army on 22 June 1977 for four years. His military occupational specialty was 75D (Personnel Records Specialist). He was advanced to specialist four/E-4 on 1 March 1979. 4. He was reported AWOL on 29 March 1979 and dropped from the unit rolls as a deserter on 27 April 1979. He surrendered to military authorities on 9 May 1979. 5. He was again reported AWOL on 19 May 1979 and dropped from the unit rolls as a deserter on 11 June 1979. He surrendered to military authorities on 11 June 1979. 6. Court-martial charges were preferred against the applicant on 18 June 1979, for violations of the Uniform Code of military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with two specifications of being AWOL from 29 March 1979 to 9 May 1979 and from 19 May 1979 to 11 June 1979. 7. 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. Subsequent to receiving legal counsel, 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 lieu of trial by court-martial. 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. b. He elected to submit a statement in his own behalf, which states he was 20 years old and had completed 12 years of school and one year of college. He was having family problems. He was married and really needed to be home. He was on orders for Germany and scheduled to do three years and he could not take his family. His wife had a nervous condition and he really needed to be with her. He tried for a reassignment. He really couldn’t talk to anyone, so he went AWOL and later turned himself in. 8. The applicant's immediate commander recommended approval of the applicant's request for discharge noting that there did not appear to be any reasonable ground to believe the applicant is, or was, at the time of his misconduct, mentally defective, deranged, or abnormal, and recommended the issuance of an UOTHC discharge. 9. The separation authority approved the applicant's request for discharge on 2 July 1979, in lieu of trial by court-martial. He directed that the applicant be reduced to the lowest enlisted grade of private/E-1 and receive an UOTHC discharge. 10. The applicant was discharged on 23 July 1979. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged in the rank of private/E-1. He was discharged under the provision of AR 635-200, Chapter 10, with Separation Program Designator code JFS [for the good of the service -in lieu of trial by court-martial] with Reenlistment (RE) Code 3 and 3B. His service was characterized as UOTHC. He completed 1 year and 11 months of active service with 64 days of lost time. 11. On 27 August 1981, the Army Discharge Review Board denied his request for a change in the type and nature of his discharge. 12. 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, all supporting documents, and the evidence found within the applicant’s military records, the Board found that relief was warranted. The Board carefully considered the applicant’s request, supporting documents, and published DoD guidance for liberal consideration of discharge upgrade requests. a. The applicant was charged with commission of an offense (AWOL) 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 and result in an under other than honorable conditions character of service. The Board noted that the applicant’s AWOL was relatively short and while his discharge was not improper, it was relatively harsh. He was a junior Soldier with two single infractions (AWOL of short durations) during nearly 2 years of service. Based on a preponderance of evidence, the Board determined that the applicant’s service clearly did not rise to the level required for an honorable characterization of service; however, a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. b. Additionally, the Board also noted that the applicant’s reduction in grade to the lowest enlisted grade resulted from his separation with an under other than honorable conditions discharge. Since the Board determined a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests, the Board also determined restoration of his grade of SP4/E-4 is also appropriate under the same DoD guidance for liberal consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 xx: xx: xx: 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 partial 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 23 July 1979 showing: • Rank/Grade as SP4/E-4 (effective his date of separation) • Character of Service Under Honorable Conditions, General. • Separation Authority: No Change • Separation Code: No Change • Reentry Code: No Change • Narrative Reason for Separation: No Change 9/19/2023 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. AR 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. Army Regulation 635-5 (Separation Documents), states, the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. Block 6a (Grade, Rate of Rank) and 6b (Pay Grade) enter grade and pay grade at time of separation. 4. 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 (BCM/NR) on 25 July 2018, 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 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//