ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 12 February 2019 DOCKET NUMBER: AR20160015284 APPLICANT REQUESTS: The applicant requests to upgrade his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 was arrested for a non-military related charge. He never stopped loving his country, and he still serves it with honor. He is a good hardworking American with pride. 3. The complete facts and circumstances surrounding the applicant's discharge are not in his available records for review; nevertheless, there is enough evidence in his record that will allow the Board to make an informed decision. 4. He enlisted in the Regular Army on 18 October 1976. 5. The applicant accepted non-judicial punishment (NJP) from 4 September 1977 to 3 January 1978 on 8 different occasions. NJP was imposed for the following misconduct: * failing to report to duty on 5 occasions * disrespecting a superior commissioned officer * being absent without leave (AWOL) on 2 occasions 6. His record is void of a separation packet; however, on 25 January 1979, Headquarters, 101st Airborne Division published orders discharging the applicant. His DD Form 214 shows he was discharged under the provisions of paragraph 14-33b(1) of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel) due to misconduct. His service was characterized as under other than honorable conditions discharge and had 7 days of lost time. He completed 2 years, 2 months, and 1 day of active service. 7. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. The AR provides 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. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 8 The applicant states he was arrested for a non-military related charge. The available evidence provides he accepted NJP eight times, reported AWOL, separated for misconduct with 7 days of lost time. Neither the applicant nor his records provide evidence that reveals specific circumstances relative to his discharge. His record is void of evidence showing he was awarded any personal decorations and neither the applicant nor his available records identify special circumstances. 9. Army Regulation 635-200 states 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. 10. 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: JUSTIFICATION: Patterns of misconduct support the characterization of service (with no mitigating factors) 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. 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 NOTES: NA ? 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if such is merited by the Soldiers overall record. 3. Army Regulation 635-5-1 (Personnel Separations Separation Program Designators (SPD)) provides that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. According to this regulation, SPD code “JKA” is used to identify Soldiers who are separated under the provisions of Army Regulation 635-200, paragraph 14-33b(1), by reason of misconduct frequent incidents of a discreditable nature with civil or military authorities. 4. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 5. 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. 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, 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. 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. ABCMR Record of Proceedings (cont) AR20160015284 2 1