IN THE CASE OF:   
 
  BOARD DATE:  19 September 2023 
 
  DOCKET NUMBER:  AR20230002200 
 
 
APPLICANT REQUESTS:  An upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge, and a personal appearance via video/telephone.  
 
APPLICANT'S SUPPORTING DOCUMENT 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, he requests an upgrade to be recognized upon his death and to possibly join the Veterans of Foreign Wars Post. He went home on 30 days of leave and had trouble with the airline when he tried to return to the base. He contacted the commander but he was unwilling to extend his leave so he could get another plane ticket. He told the applicant he was considered absent without leave (AWOL) despite him trying to return.  
 
3.  On 29 January 1971, the applicant enlisted in the Regular Army for a 2-year service obligation. Upon completion of training and award of military occupational specialty 76Y (Supply Specialist), he was assigned to Germany and arrived on 26 July 1971. 
 
4.  He was honorably discharged on 24 April 1972 for immediate reenlistment. He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was credited with completing 1 year, 2 months, and 26 days of net service this period.  
 
5.  On 25 April 1972, he reenlisted in the Regular Army for a 6-year service obligation. His DA Form 20 (Enlisted Qualification Record) shows he was reported AWOL from his unit in Germany from on or about 31 May 1972 until 9 August 1973.  
6.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, Special Orders Number 179, issued by Headquarters, U.S. Army Center and Fort Knox, Fort Knox, KY on 11 September 1973, shows the applicant was reduced to the lowest enlisted grade and transferred for separation processing, effective 7 September 1973. 
 
7.  The applicant was discharged on 17 September 1973, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, with Separation Program Number “246” for the good of the service. He was issued a DD Form 258A (Undesirable Discharge Certificate). His service was characterized as UOTHC and he was credited with completing 2 months and 13 days of net active service this period, with 436 days of lost time.  
 
8.  The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary.  
 
9.  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:   
 
1.  The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 
 
2.  After reviewing the application and all supporting documents, the Board found that relief was not 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.  
 
 a.  The applicant’s separation packet is not available for review. However, the Board noted that other evidence shows he was 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 carry an under other than honorable conditions 
characterization of service. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 
 
 b.  The Board was not persuaded by the applicant’s contention that he went home on 30 days of leave and had trouble with the airline when he tried to return to the base. His service record reflects an extensive period of AWOL/lost time (436 days). Additionally, 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 
 
xx: xx: xx: 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. 
 
  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.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires.  
 
3.  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.  
 
4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) 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//