ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20160014335 APPLICANT REQUESTS: reconsideration for upgrade of other than honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored Statement * character references 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 AR201000006963 on 5 August 2010. 2. The applicant states that in early 1978, he went to the store and the police were there and questioned him about returned checks that were in a name the same as his. The police took him down to the police department and there were even more checks there. He told his commander about the situation and his commander advised that he would look into it. The commander told the applicant that he could not find a Sergeant/SGT X__. Later he received a letter addressed to SGT X and X__ and he showed it to his commander. By this time the Federal Bureau of Investigation (FBI) had questioned him. He knew it was wrong but he fled and he believed that his wife was controlling him because he knew that she could turn him into the authorities. After he was discharged he and his wife were no longer married. He is now married to another woman for over 35 years. 3. The applicant provides: a. A character reference from X__ who states that she has been with the applicant since October 1980. He told her what happened while he was in the Army. He told her that he wanted to make a career out of the Army so she tried to help him get back into the military, but he was told that he could not get back in. At this time, she wrote letters to attempt to get his discharge upgraded. They have two boys and six grandchildren and they attend Trinity Baptist Church. He has gotten involved in the church and served for 2 years on the city board for Marietta, OK. If she knew him when he was in the Army, she would have stood behind him and she knows he would have been a good Soldier because he is a good husband, father and grandfather. b. A character reference from X__ who states he has served as the applicant’s pastor and found him to be a man of honesty and integrity. The applicant and his wife are members of X__ Baptist Church in Ardmore where he assists with van ministry and other responsibilities at the church. He knows that the applicant regrets that things were not handled differently and we all have things in our past that we wish were not there. Any consideration will be deeply appreciated. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 14 November 1973. b. He served in Germany from 20 August 1975 to 10 October 1978. c. He was discharged from active duty with an honorable characterization of service for immediate reenlistment on 16 December 1975. His DD Form 214 shows that he completed 2 years, 1 month, and 3 days of active service. It also shows that he was awarded or authorized the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16). d. He reenlisted in the RA on 17 December 1975. e. He accepted nonjudicial punishment on 31 August 1979 for absented himself from his organization from 15 March 1979 to 23 July 1979. His punishment included reduction to the grade specialist (SPC)/E-4. f. On 31 January 1980, charges were preferred against the applicant for one specification of without authority absent himself from his organization from 19 September 1979 to 21 January 1980. g. His unit commander recommended a trial by special court-martial (no date annotated). h. After consulting with legal counsel on 1 February 1980, the applicant requested discharge for good of the service. He acknowledged: * he voluntarily requested discharge for the good of the service under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) * he made the request of his own free will and was not subjected to any coercion whatsoever by any person * he was advised of the implications attached to the discharge request * he acknowledging that he was guilty of the charge(s) against him or of a lesser included offense(s) * he had no desire of further rehabilitation or further military service * he consulted with legal counsel who advised him of his rights * he understood that if the request for discharge was accepted he may be discharged with under other than honorable conditions characterization of service * he may be deprived of may or all Army benefits * he may be ineligible for many or all benefits administered by the Veteran Administration * he may be deprived of his rights and benefits as a veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life * he may withdraw the discharge request at any time up until the discharge order is approved * he may submit statements in his own behalf i. On 15 February 1980, his unit commander recommended approval of the applicant’s request for discharge and that he be discharged under other than honorable conditions. j. The circumstances and facts regarding the applicant’s battalion and brigade commanders recommendation are not available for the Board to review. k. On 21 February 1980, the separation authority approved the request for discharge for the good of the service under the provisions of chapter 10, AR 635-200 and directed that the applicant be furnished an other than honorable discharge certificate and be reduced to the lowest enlisted grade private(PVT)/E-1. l. He was discharged from active duty on 26 February 1980 with an under other than honorable characterization of service under the provisions of chapter 10, AR 635-200 with the grade of PVT/E-1. His DD Form 214 states that he completed 3 years, 5 months, and 29 days of active service with the periods of 15 March 1979 to 22 July 1979 and 19 September 1979 to 20 January 1980 as lost time. 5. His record is absent information showing he received a permanent profile for any medical conditions or physical limitations during his period of service. 6. The applicant applied to the Army Discharge Review Board and on 13 March 1987, his application for an upgrade of his discharge was denied. 7. The applicant applied to the Army Board for Corrections of Military Records and on 5 August 2010, his application for an upgrade of his discharge was denied. 8. In the processing of this case, a medical advisory opinion, dated 11 April 2019, was received from the Army Review Boards Agency Medical Advisor. The advisory official stated that based on the available medical records, the applicant met medical retention standards in accordance with (IAW) Army Regulation (AR) 40-501 (Medical Services Standards of Medical Fitness), and following the provision set forth in AR 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. A review of available documentation found no evidence of a medical disability or condition that would support a change to the character and / or reason for the discharge, and the applicant did not have mitigating medical or behavioral health condition(s) for the offenses, which led to his separation from the Army. 9. The applicant was provided the opportunity to rebut the advisory opinion on 12 April 2019; however, he did not respond. 10. By regulation 635-200 (Personnel Separation – Enlisted Separations), a member who has committed an offense or offenses, the punishment for any of 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 Soldier or where required after referral until final action by the court-martial convening authority. 11. By regulation 40-501 (Standards of Medical Fitness) provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. 12. 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 review of the application and all evidence, the Board found relief is not warranted. The applicant’s contentions, character letters, medical concerns, and the medical advisory were carefully considered. The medical advisory official determined there was no boardable medical condition during his period of active service, nor mitigating factors to his misconduct and subsequent separation. He was provided the opportunity to rebut the advisory; however, he did not respond. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon the multiple offenses of a criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 to amend the decision of the ABCMR set forth in Docket Number AR201000006963 on 5 August 2010. 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets for the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of 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 has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military records is not sufficiently meritorious wo warrant an honorable discharge. When a member’s service is characterized as general except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security the specific basis for such separation will be included in the individual’s military personnel record. c. Chapter 10 (For the Good of the Service) states a Soldier who has committed an offense or offenses, the punishment for which 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 Soldier or where required after referral until final action by the court-martial convening authority. An under other than honorable conditions normally is appropriate for a Soldier who is discharge for the good of the service. 2. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 3. 40-501 (Standards of Medical Fitness) provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. 4. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any record of the Secretary’s Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary’s Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of the Military Department. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Corrections of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160014335 6 1