IN THE CASE OF: BOARD DATE: 26 October 2023 DOCKET NUMBER: AR20230002268 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Armed Forces of the United States – Report of Transfer or Discharge) for the period ending 30 March 1971 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, in effect, he had two strokes prior to being able to submit documentation. He desires a discharge upgrade. 3. The applicant enlisted in the Regular Army on 31 January 1969 for a 2-year period. The highest rank he attained was private/E-1. 4. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniformed Code of Military Justice on 24 April 1969, for being absent from his unit without authority (AWOL), on or about 26 March 1969 until on or about 22 April 1969. His punishment consisted of forfeiture of $51.00 pay per month for two months, 45 days of restriction, and 45 days of extra duty. 5. Before a summary court-martial, the applicant pled guilty to and was found guilty of being AWOL, on or about 26 April 1969 until on or about 27 May 1969. He was sentenced to forfeiture of $25.00 pay for one month. The sentence was adjudged on 10 June 1969 and approved and ordered executed on 17 June 1969. 6. Court-martial charges were preferred against the applicant on 24 October 1969 for violations of the Uniform Code of Military Justice. The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 11 July 1969 until on or about 13 October 1969. 7. The applicant consulted with legal counsel on 21 January 1971. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his behalf. He elected not to submit a statement. 8. Court-martial charges were preferred against the applicant on 9 February 1971 for violations of the Uniform Code of Military Justice. The relevant DD Form 458 shows he was charged with being AWOL, on or about 22 December 1969 until on or about 15 January 1971. 9. The applicant's immediate commander recommended approval of his request for discharge for the good of the service on 10 March 1971. The commander opined that the applicant had no motivation for continued service and would not respond to counseling or rehabilitation. 10. The applicant’s intermediate commander and the Staff Judge Advocate also recommended approval of the applicant’s request for discharge and further recommended the issuance of a DD Form 258A (Undesirable Discharge Certificate). 11. The separation authority approved the applicant's request for discharge on 22 March 1971 and directed the issuance of an Undesirable Discharge Certificate. 12. Accordingly, the applicant was discharged on 30 March 1971, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. His DD Form 214 shows his service was characterized as UOTHC, with separation program number 246 and reenlistment code RE-4. He was credited with 9 months and 2 days of net active service, with 514 days of lost time. He was awarded or authorized the National Defense Service Medal. 13. Administrative separations under the provisions of Army Regulation 635-200, Chapter 10 are voluntary requests for discharge for the good of the service, in lieu of a trial by court-martial. An UOTHC character of service is normally considered appropriate. 14. The Board should consider the applicant's statement and provided evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of the evidence, the Board determined 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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. 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 (cont) AR20230002268 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1