IN THE CASE OF: BOARD DATE: 22 July 2021 DOCKET NUMBER: AR20200000029 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 retired from 30 years of truck driving over the road. He has been married for 22 years; he sings in church choir and he is also involved in other areas of the church. Additionally, he participates in fund raising effort for the children education. 3. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 24 November 1975. He held military occupational specialty 94B (Food Service Specialist). 2004. He was assigned to Fort Campbell, KY. b. On 11 September 1976, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from a noncommissioned officer. His punishment consisted of reduction from private/E-2 to private/E-1 (suspended) and forfeiture of $100 pay per month for 2 months. c. On 27 July 1977, court-martial charges were preferred on the applicant for violating the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with: * one specification of wrongfully communicating a threat to kill his commissioned officer * one specification of offering violence against his lieutenant by physically drawing back his hand to strike him d. On 12 August 1977, after consulting with legal counsel, the applicant requested discharge for the good of the service under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the charges preferred against him under the UCMJ, which authorize the imposition of a bad conduct or dishonorable discharge. He acknowledged: * he was guilty of one of more of the charges, or lesser included offenses * he did not desire further rehabilitation and had no desire to perform further military service * if his request was accepted, he may be discharged under conditions other than honorable * he would be deprived of many or all Army benefits, may be ineligible for many or all benefits administered by the VA, may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge e. His immediate, intermediate, and senior commanders all recommended his discharge with the issuance of an under other than honorable conditions discharge. f. On 29 August 1977, consistent with the chain of command recommendations, the separation approval authority approved the discharge and furnished the applicant an Under Other Than Honorable Conditions Discharge Certificate. The applicant would be reduced to the lowest enlisted grade, if applicable. g. On 1 September 1977, the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period shows he was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service. He completed 1 year, 9 months, and 8 days of active service. h. There is no indication he petitioned the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 4. By regulation, an individual who has committed an offense or offenses, the punishment for which, under the UCMJ, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. Based upon the short term of honorable service completed prior to misconduct leading to the applicant’s separation and the violent nature of the misconduct involved, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. 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. 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, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states 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. b. Paragraph 1-13b (General Discharge) states 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. c. Chapter 10 (Discharge for the Good of the Service) states an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 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/NRs) 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. 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 based on 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. 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) AR20200000029 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1