IN THE CASE OF: BOARD DATE: 3 May 2021 DOCKET NUMBER: AR20200006768 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 6 February 2020 * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Report of Separation from Active Duty), for the periods ending 29 January 1973 and 7 July 1975 * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 6 February 2020 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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. After serving almost four months at his first duty station, he was given the opportunity to re-enlist. He thought he would make a career out of the military. That all changed when his unit had a change of command in late 1974. The commander was extremely hard on him and accused him of being a homosexual and a drug user. He was neither and the unit did not have any evidence to discharge him for drugs. He never failed a urinalysis or came to duty impaired by drugs or alcohol. b. After being demoted, he lost faith in the command and the Army. His commander asked him if he wanted out and he agreed, not knowing the importance of his discharge characterization. He served honorably for his entire service, but after being harassed, he just wanted out. He has always viewed his time in the Army as one of his greatest accomplishments, especially having served during a time of war. 3. The applicant enlisted in the Regular Army on 13 March 1972. He was honorably discharged on 29 January 1973, for the purpose of immediate reenlistment. He was issued a DD Form 214 for this period that confirms his service was characterized as Honorable. 4. The applicant reenlisted in the Regular Army on 30 January 1973. 5. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 16 July 1973, for failing to go at the time prescribed to his appointed place of duty (two specifications), on or about 16 July 1973 * on 15 November 1973, for being absent without leave (AWOL), on or about 14 November 1973 * on 15 May 1974, for being AWOL, from on or about 4 May to on or about 5 May 1974 and from on or about 11 May to on or about 12 May 1974; for willfully disobeying a lawful order, on or about 14 May 1974; and for being absent from his appointed place of duty, on or about 14 May 1974 * on 6 June 1974, for being AWOL, from on or about 26 May 1974 to on or about 27 May 1974; and for being absent from his appointed place of duty, on or about 25 May 1974 * on 14 April 1975, for failing to go at the time prescribed to his appointed place of duty, on or about 10 April 1975 6. A report of psychiatric evaluation shows the applicant was referred by his commander for evaluation on 9 June 1975. The examining physician determined the applicant had an immature personality. He was psychiatrically cleared for administrative action deemed appropriate by his command. 7. The applicant's commander notified the applicant on 10 June 1975 that he had initiated actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a, by reason of unfitness. 8. The applicant consulted with legal counsel on 10 June 1975 and was advised of the basis for the contemplated separation actions and its effects, the rights available to him, and the effects of a waiver of his rights. He elected not to make a statement in his own behalf. 9. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 13-5a, by reason of unfitness. As the specific reason, his commander cited the applicant’s conduct by AWOL, communicating a threat, indebtedness, disobeying orders, acts of disrespect, uniform violations, and inefficiency on the job. 10. The separation authority approved the recommended discharge on 22 June 1975, and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 11. The applicant was discharged on 7 July 1975. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a (3), his service was characterized as UOTHC, and he was issued an Undesirable Discharge Certificate. 12. A DD Form 215 (Correction to DD Form 214) was created on 18 February 1981, which amended the applicant's DD Form 214 by changing the authority and reason for discharge to Army Regulation 635-200, paragraph 14-33b (1), based on misconduct - frequent incidents of a discreditable nature with civil or military authorities. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was warranted. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration and clemency in discharge upgrade requests. Given the applicant’s era of service, the type and frequency of his misconduct, and the determination of the physician indicating by current standards a behavioral health condition, the Board found relief on the basis of equity was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XXX 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 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 24 August 1989, showing his character of service as 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): Not Applicable REFERENCES: 1. Title 10, USC, 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 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 13-5(a), as then in effect, provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. d. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record. 3. 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 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) AR20200006768 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1