IN THE CASE OF: 
 
  BOARD DATE: 19 September 2023 
 
  DOCKET NUMBER: AR20230002489 
 
 
APPLICANT REQUESTS:  reconsideration of his request for upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (General) discharge. 
 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• Self-authored statement 

• Statement from his brother 


 
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 AR20210008577 on 27 January 2022. 
 
2.  The applicant states he would like to have a military identification card and medical benefits. He was arrested in January 1968 for stolen property. At his hearing, he was offered the opportunity to either join the Armed Service or face a trial; he elected to join the Army in February 1968. Upon completion of initial entry training, he went home on leave and did not want to go back because his mother was aging, and it was just the two of them. He reported to his next assignment at Fort Hood, TX. After about a year, his mother became ill with ovarian cancer, and he went absent without leave (AWOL) so he could care for her. He found a job and went to work. In 1974, President Ford offered the Amnesty Program and he turned himself in at Fort Ord, CA. After a hearing, he was released with a discharge UOTHC. He has contemplated requesting an upgrade of his characterization of service for years and finally decided to move forward. They raised three sons and have six beautiful grandchildren. His youngest son served six years in the U.S. Marine Corps and four years in the U.S. Air Force, which makes him proud. 
 
3.  On 21 February 1968, the applicant enlisted in the Regular Army for a period of 2 years. Upon completion of initial entry training, he was assigned to a unit at Fort Hood, TX. He was advanced to the rank/pay grade of specialist four/E-4 on 11 August 1969.  
4.  On 30 October 1968, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 30 September 1968 until on or about 28 October 1968. His punishment included reduction to the rank/grade of private first class/E-3; restriction for 14 days, extra duty for 14 days, and forfeiture of $31.00 for one month. 
 
5.  The applicant's DA Form 20B (Record of Court-Martial Conviction) shows, Summary Court-Martial Order Number 18, issued by the Special Processing Detachment, U.S. Army Training Center, Fort Dix, NJ, documented his conviction for violation of Article 86, of the UCMJ for being AWOL from on or about 2 December 1968 until on or about 31 January 1969. His punishment included confinement at hard labor for 30 days and forfeiture of $73.00 for one month. The sentence was adjudged on 17 February 1969 and approved on 18 February 1969. 
 
6.  A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 5 August 1974 for two specifications of violation of Article 86, of the UCMJ, for: 
 
• on or about 31 December 1969, without authority, absenting himself from his unit and remaining so absent until on or about 14 February 1970 

• on or about 21 April 1970, without authority, absenting himself from his unit and remaining so absent until on or about 1 August 1974 


 
7.  Following consultation with counsel, the applicant voluntarily requested discharge on 8 August 1974, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, for the good of the service. He was advised of the basis for the 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. He submitted a statement wherein he stated if returned to duty he would go AWOL; he understood he would not receive any benefits such as loans, education, and training; and that he would accept an undesirable discharge. His reasons for not remaining in the Army were that he had a great job that paid very well and would continue to better himself and his family. He declined the opportunity to participate in the President's program for the return of military deserters. 
 
8.  The applicant's chain of command recommended approval of his request for discharge for the good of the service. 
 
9.  The separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 4 November 1974, with his service characterized as UOTHC. He further directed the applicant be reduced to the lowest enlisted grade. 
 
10.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 12 November 1974, in the rank/pay grade of private/E-1, under the provisions of Army Regulation 635-200, Chapter 10, with Separation Program Designator (SPD) code "KFS" by reason of In Lieu of Trial by Court-Martial. He was credited with completing 1 year, 8 months, and 1 day of net active service this period. He did not complete his first full term of service. He had 1,821 days of lost time.  
 
11.  The applicant petitioned the ABCMR for relief. On 14 October 2022, he was informed the ABCMR had carefully considered his request for upgrade of his discharge, under procedures established by the Secretary of the Army and denied his request. 
 
12.  Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court-martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. A characterization of UOTHC is authorized and normally considered appropriate. 
 
13.  In support of his petition for reconsideration, the applicant provides a statement rendered by his brother which states: 
 
     a.  He is six years older than the applicant and their parents separated when he was 11 and the applicant was 5. They experienced financial loss and lived in their grandfather's basement with their mother for a while prior to moving into a housing project. He enlisted in the U.S. Air Force in 1962 and had very little contact with the applicant or their mother. When he became aware of his mother's health issues around 1971, he relocated her to live with him in New Mexico. Although he was not close to his brother, they remained in contact. 
 
     b.  In 1973, he received a call from a Federal Bureau of Investigation (FBI) agent who made him aware his brother was AWOL. He contacted a political contact and arranged for the applicant to surrender to the FBI or Marshall. Turning in his brother never went well, but he knew it was in the applicant's best interest.  After that, he never spoke to or saw the applicant until about two years ago when they learned they have similar health issues. He forgives his brother for not completing his military service because they each put their mother above all in their own way. The applicant has led a successful and productive life. His brother provided an email from the applicant wherein he mentioned he had been nominated to be entered into the Indiana Broadcasters Hall of Fame. 
 
14.  The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for Veterans' benefits; however, 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 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 evidence shows the applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge (extensive AWOL). 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 carry an under other than honorable conditions characterization of service. 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 three 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 three-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) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 
 
3.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 
 
 a.  Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. 
 
 b.  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. 
 
 c.  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. 
 
 d.  When a Soldier was to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 
 
4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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, 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//