ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 March 2019 DOCKET NUMBER: AR20160013728 APPLICANT REQUESTS: Reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge to general or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC 88-05918 on 4 January 1989. 2. The applicant states he served his country and should be eligible for a VA [Department of Veterans Affairs] loan for purchase of a home. 3. On 5 August 1980, he enlisted in the Regular Army. His only overseas assignment was in Germany from 19 January 1982 to 7 July 1983. 4. He accepted nonjudicial punishment (NJP) on three occasions: * 24 August 1981 for failure to go to his appointed place of duty * 4 September 1981 for failure to go to his appointed place of duty * 4 August 1982 for disobeying a lawful order from a noncommissioned officer. 5. On 19 April 1983 he was notified his commander was considering NJP for being disrespectful toward a commissioned officer by saying to him, "We're alright man" and the applicant demanded trial by court-martial. 6. On 16 May 1983 charges were preferred against him. The charge sheet lists documents and objects that are not available for review; however, it is noted he is requesting trial by court martial. 7. A transmittal for court-martial charges shows summaries of expected testimony that are not available for review and states the character of the applicant's service prior to the offense has been marginal. 8. On 14 June 1983 the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10.  He signed a request for discharge for the Good of the Service and indicated he would not submit statements in his own behalf. 9. On 23 June 1983, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 10 and directed he be issued an under other than honorable conditions discharge. 10. On 8 July 1983, he was discharged accordingly. He completed 2 years, 11 months, and 4 days of net active service with no lost time. His DD Form 214 shows he was awarded or authorized: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar * Army Service Ribbon 11. On 28 October 1982 the applicant received a letter from the Army Discharge Review Board notifying him the Board reviewed his case; however, the letter does not identify the requested relief or the type of relief given, if any. 12. On 4 January 1989, the Army Board for Corrections of Military Records denied the applicant’s request for an upgrade of his discharge wherein: a. The applicant states he received NJP several times; however he refused the NJP for disrespecting an officer and demanded a court-martial because he felt the charge was not right. He consulted with legal and was advised he case would not come to trial until after his expiration term of service. Legal counsel advised him to sign a Chapter 10 statement, which he did without reading it. Legal also advised him to try and get the Battalion Commander to change the court-martial back to NJP so the applicant tried to see he but was never given an appointment. The applicant provided the board certificates of achievement and letters of reference to support his application. b. The applicant's counsel contends he was a mental group IV enlistee under the influence of alcohol at the time of his offenses. The discharge was too harsh and inequitable. 13. AR 635-200 states a chapter 10 is a voluntary request for separation in lieu of trial by court-martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. a. The applicant stated in his first ABCMR request that he demanded a court-martial because he felt the charge was wrong. He signed the chapter 10 request as advised by counsel and never read it. He is now asking the Board to take into consideration that he served his country and an upgrade of his discharge would make him eligible for VA benefits. b. His record shows charges were preferred based on the applicant requesting a court-martial instead of accepting NJP for disrespecting an officer by saying "We're alright man." 14. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the short period of military service performed prior to multiple events of misconduct occurring, as well as a lack of evidence provided by the applicant to mitigate that behavior, the Board found insufficient evidence or reason to change the characterization of service. The Board found that the characterization of service received at the time of discharge was warranted based upon the facts and circumstances of the case. 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. SIGNATURE: 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, 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 Army Board for Correction of Military Records (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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable 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 the charges had been preferred and must have included the individual’s admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b.  Paragraph 3-7b states that 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. c.  Paragraph 3-7c states that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and 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. ABCMR Record of Proceedings (cont) AR20160013728 2 1