IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230006746 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions (UOTHC) to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), 10 March 2023 * two certificates of completion, 2 December 2022, and date unknown * character reference, from , 10 March 2023 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, his service from 14 March 1977 through 13 March 1980 is considered honorable for the Department of Veterans Affairs (VA) purposes. He failed to leave a room and received punishment. Due to mistreatment by his superior, harassment, and fear of unit and duties, he ended up going absent without leave (AWOL) on 6 May 1983 through 23 May 1985.He "volunteered" to return to the Army and faced charges. He states he did not commit any Federal or Civil crimes and his only disregard of his superiors was not leaving a room as instructed. He feels his overall service was excellent. 3. The applicant enlisted in the Regular Army on 14 March 1977, for a 3-year period, He subsequently reenlisted on 8 January 1980 for an additional 4-year period and executed an oath of extension for 19 months. 4. A DA Form 2-1 (Personnel Qualification Record) shows the highest rank/grade he attained was specialist four (SP4)/E-4, with a date of rank of 9 August 1978. 5. The applicant accepted company grade non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 1 December 1982 for failure to obey a lawful order by not leaving a room on or about 27 October 1982 His punishment consisted of forfeiture of $100.00, 14 days of extra duty and restriction, and reduction to E-3. 6. DA Forms 4187 (Personnel Action) show the applicant's duty changed from: a. Ordinary leave to absent without leave (AWOL) on 6 May 1983. b. The applicant was apprehended by civilian authorities on 3 May 1985 for civilian charges of driving under the influence and driving without a license. He was fined and sentenced to probation; on 23 May 1985 he was returned to military control. 7. Court-martial charges were preferred against the applicant on 30 May 1985, for violation of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with one specification of being AWOL from on or about 6 May 1983 until on or about 23 May 1985. 8. The applicant consulted with legal counsel on 31 May 1985. After consulting with counsel, the applicant executed a written request for discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations- Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service). He acknowledged his understanding of the following in his request: a. He understood that he could request discharge for the good of the service because the charges preferred against him could result in the imposition of a punitive discharge. b. Prior to completing this request, he was afforded the opportunity to consult with appointed counsel, who fully advised him of the basis for his contemplated trial by court- martial, the maximum punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions character of service, and of the procedures and rights available to him. c. He acknowledged that he was making this request of his own free will and had not been subjected to any coercion by any person. Although counsel furnished him legal advice, this decision was his own. Additionally, he elected not to submit a statement in his own behalf. 9. On 3 June 1985, the applicant’s immediate and intermediate commanders recommended approval of his request for discharge for the good of the service. It was recommended he receive a service characterization of UOTHC. 10. The separation authority approved the applicant’s request for discharge in lieu of court-martial on 12 June 1985, and further directed a UOTHC discharge and reduction to the grade of E-1. 11. The applicant was discharged on 16 July 1985, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms a UOTHC characterization of service, with separation code KFS and reenlistment code RE-3B/3C and 3. He was credited with 6 years, 3 months, and 16 days of net active service. He was awarded the Good Conduct Medal and Non-Commissioned Officer Professional Development ribbon (primary level). 12. He additionally provides two certificates of completion for two sobriety centers and a character statement from , stating, in effect, the applicant is located in a transitional housing facility for Veterans. He is required to maintain sobriety and give random drug tests, save half of his income, volunteer or work in the community, and give back by working in the commissary that supports community veterans. The applicant has been an outstanding resident, thus far, he is supportive, helpful, and an all-around great influence. 13. There is no indication the applicant applied to the Army Discharge Review Board within that Boards 15-year statute of limitations. 14. Discharges under the provisions of AR 635-200, chapter 10 are voluntary requests for discharge for the good of the service, from the Soldier, to avoid a trial by court- martial. An UOTHC character of service is normally considered proper. 15. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board determined there is insufficient evidence of in-service mitigating factors to overcome misconduct of driving under the influence. The Board carefully considered the applicant’s honorable service, his post service achievements of maintaining his sobriety and the character letters attesting to his contributions to his community since his discharge. 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. 2. However, during deliberation the Board determined the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately show his period of honorable service by granting a partial upgrade. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. 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 amending the applicant’s DD Form 214 for the period ending 16 July 1985 to add the following in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE SERVICE FROM 770314 UNTIL 800107 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of his characterization of service from under other than honorable conditions (UOTHC) to under honorable conditions (general). 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. ADMINISTRATIVE NOTE(S): N/A 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 (AR) 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provided that a member who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court- martial to which the charges may be referred. (1) The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. (2) Commanders will ensure that a member is not coerced into submitting a request for discharge for the good of the service. (3) The member will be given a reasonable time to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. (4) After receiving counseling, the member may elect to submit a request for discharge for the good of the service. The member will sign a written request, certifying that they were counseled, understood their rights, may receive a discharge under other than honorable conditions, and understood the adverse nature of such a discharge and the possible consequences. (5) A discharge UOTHC was normally appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if such are merited by the member's overall record during the current enlistment. b. An honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. c. A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. 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. 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) AR20230006746 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1