IN THE CASE OF: BOARD DATE: 18 April 2019 DOCKET NUMBER: AR20160013070 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 18 April 2019 DOCKET NUMBER: AR20160013070 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests his under other than honorable conditions discharge be upgraded. 2. The applicant states due to his age, being irresponsible, and the crowd he was running with at the time, he received non-judicial punishment (NJP) on three occasions for disobeying a lawful order. Since that time, he has become an outstanding citizen and he has worked many jobs and has a good working reputation. He gives authority figures the respect they deserve. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records and his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 5 August 1983 (partially legible). 2. Evidence from the applicant's service record, and Department of the Army (DA) and Department of Defense records and systems: * DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), 11 September 1979 * DA Form 2-1 (Personnel Qualification Record) * four DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ) * 259th Personnel Service Company Permanent Orders 92-3, dated 20 June 1983 * 259th Personnel Service Company Orders 153-52, dated 23 June 1983 * 259th Personnel Service Company Orders 182-39, dated 26 July 1983 * DD Form 214 with a separation dated 5 August 1983 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 Army Board for Correction of Military Records (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) 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) prescribes policies and procedures governing the various types of service obligations and participation requirements. Paragraph 3-7 states that for the purpose of satisfying the active duty requirement of a statutory or contractual obligation, officers and enlisted Soldiers are credited with completing 2, 3, 4, or 5 years of active duty when they serve to within 90 days of that specific period. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators used for these stated reasons. a. The SPD code "KFS" as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as for the good of the service - in lieu of court-martial and that the authority for discharge under this SPD is AR 635-200, Chapter 10. b. The SPD code "JBK" specifies the narrative reason for discharge as "Expiration term of service" and that the authority for discharge under this SPD is AR 635-200, Chapter 4. 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade. Board action was not required for this reduction. 4. AR 635-200 (Personnel Separations, Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Paragraph 4-2e stated that AR 135-91 defines the various service obligations incurred by military personnel upon initial entry into military service and prescribes the methods of fulfillment. b. Paragraph 4-4 stated Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in entry-level status and service is uncharacterized. c. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. d. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. Where there were infractions of discipline, the extent thereof was considered, as well as the seriousness of the offense(s). A member was not necessarily denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under Article 15, UCMJ. e. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 5. AR 635-8 (Separation Processing and Documents), currently in effect, prescribes the mandatory entry, "SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE" in item 18 of the DD Form 214. 6. 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 on the basis of 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. 7. Title 10 U.S. Code, section 1171 (10 USC 1171) states under regulations prescribed by the Secretary concerned and approved by the President, any regular enlisted member of an armed force may be discharged within three months before the expiration of the term of his enlistment or extended enlistment. A discharge under this section does not affect any right, privilege, or benefit that a member would have had if he completed his enlistment or extended enlistment, except that the member is not entitled to pay and allowances for the period not served. DISCUSSION: 1. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 11 September 1979, the applicant enlisted in the Regular Army in pay grade E-2 for 4 years. On 1 June 1980, he was promoted to private first class (PFC)/pay grade E-3. 3. On 23 September 1980, the applicant received non-judicial punishment (NJP) for being absent without leave (AWOL) from 3 September 1980 - 10 September 1980. 4. On 30 July 1981, the applicant received NJP, which included reduction to pay grade E-2, for: * failing to go at the time prescribed to his appointed place of duty * failing to obey an order from a commissioned officer 5. On 2 December 1981, the applicant was assigned to the 82nd Engineer Battalion in Germany. On 1 May 1982, the applicant was promoted to PFC. 6. On 1 October 1982, the applicant received NJP for: * failing to go at the time prescribed to his lace of duty * failing to obey a lawful order from a noncommissioned officer (NCO) 7. On 15 March 1983, the applicant received NJP, which included reduction to pay grade E-2, for: * two specifications of failing to obey a lawful order from an NCO. * failing to obey a lawful order from a commissioned officer. 8. On 20 June 1983, the applicant was awarded the Army Good Conduct Medal for exemplary conduct, efficiency, and fidelity during the period from 18 September 1979 - 17 September 1982. 9. 295th Personnel Service Company Orders 153-52, dated 23 June 1983, reassigned the applicant to the U.S. Army Separation Transfer Point (USASTP) at Fort Dix, NJ to report 15 September 1983 for relief from active duty on 17 September 1983. 10. Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 shows he was reduced to PV1/pay grade E-1 on 21 July 1983. No reason for this reduction is shown in the applicant's record. However, if a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade. 11. 295th Personnel Service Company Orders 182-39, dated 26 July 1983, reassigned the applicant to USASTP, Fort Dix, NJ with a reporting date to be determined by his port call with a date of discharge to be determined. Additional instructions paragraph (g) stated "You are being separated for failure to meet acceptable standards for continued military service." 12. On 5 August 1983, the applicant was discharged. He completed 3 years, 10 months, and 18 days of net active service. He had 7 days of time lost. His DD Form 214 contains the following entries: * Item 4a (Grade, Rate or Rank) - "PV1" * Item 4b - E1 * Item 12h (Effective Date of Pay Grade) - 21 July 1983 * Item 24 (Character of Service) - Under Other Than Honorable Conditions * Item 25 (Separation Authority) - Chapter 10, AR 635-200 * Item 26 (Separation Code - "KFS" * Item 28 (Narrative Reason for Separation) - For the Good of the Service - in Lieu of Court-martial. 13. There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations. 14. There is no charge sheet in the applicant's Military Personnel Records Jacket and there is no separation processing packet available for review. In order to be discharged under the provisions of chapter 10, AR 635-200, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge. He would have been required to consult with defense counsel and to voluntarily and in writing request separation from the Army in lieu of trial by court-martial. In doing so, the applicant would have admitted he was guilty of the offenses he was charged with and acknowledged that he could receive a discharge under other than honorable conditions. 15. Soldiers returning from overseas with less than 90 days of service remaining were normally discharged or separated and considered to have fulfilled their active duty contractual agreement. 16. The applicant served to within 90 days of his 4-year contractual agreement. In accordance with Army regulations and 10 USC 1171, he would have been considered to have completed his service contract. A Soldier being separated upon fulfillment of service obligation would normally be awarded an honorable discharge. In this case, the evidence indicates that court-martial charges were preferred against him. Once court-martial charges had been preferred, he would not have been eligible for discharge or release from active duty until final disposition of those charges. His DD Form 214 indicates court-martial charges against him were resolved by a separation authority’s approval of his voluntary request for discharge in lieu of trial by court-martial with service characterized as under other than honorable conditions. 17. The applicant states his misconduct was due to his age, being irresponsible, and the crowd he was running with at the time. He states that since that time, he has become an outstanding citizen, he has worked many jobs and has a good working reputation, and he gives authority figures the respect they deserve. The Board should consider his statement along with the evidence from his service record in accordance with the published equity, injustice, or clemency determination guidance. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170012345 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013070 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2