ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20160015316 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: he submits a DD Form 149 (Application for Correction of Military Record). 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 AR20080014754 on 13 January 2009. 2. The applicant states he has medical problems. He developed multiple sclerosis from being around chemicals during his period of service in the Army. Before he entered the Army, he could walk well, run, jump, and more. However, he currently cannot walk well, run, or jump anymore because of this progressive multiple sclerosis. His medical doctors and nurse practitioner can provide more information. 3. Review of the applicant’s military record shows: a. He enlisted in the Regular Army (RA) on 13 January 1977. He held military occupational specialty 11B (Infantryman). b. He accepted nonjudicial punishment on/for: * 8 September 1977 – sleeping on his post * 13 October 1978 – being absent from his unit on 2 October 1978 * 2 December 1978 – unlawfully striking a Soldier c. He was promoted to E-4 on 1 April 1979. d. He was honorably discharged on 23 July 1979, for the purpose of his immediate reenlistment. His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 6 months, and 11 days of net active service. He reenlisted in the RA on 24 July 1979. e. On 1 September 1979, he was apprehended by civilian authorities for breach of the peace and he was released to Fort Lee, VA, for processing. He surrendered to military authorities on 7 September 1979. f. On 13 May 1980, court-martial charges were preferred against him for one specification of being absent without leave from 1 November 1979 to 7 May 1980. g. On 16 May 1980, after consulting with legal counsel, he requested a discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (in lieu of trial by court-martial). He acknowledged: * his period of AWOL * maximum punishment * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate * he may be deprived of many or all Army benefits * he 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 h. On 21 May 1980, the applicant’s chain of command recommended approval of the applicant’s request and the issuance of an under other than honorable conditions discharge. i. On 27 May 1980, the separation authority approved the applicant’s request for discharge for the good of the service and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted pay grade. j. Accordingly, he was discharged on 22 July 1980. His service was characterized as under other than honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 months and 23 days of net active service and time lost from 1 November 1979 to 6 May 1980. The form does not list any authorized awards. k. On 14 April 1992, the Army Discharge Review Board determined that he was properly and equitably discharged and denied his petition for a change in the character and/or reason for his discharge. l. On 13 January 2009, the ABCMR determined the applicant had not shown error, injustice, or inequity for the requested relief and denied his petition for an upgrade of his discharge. 4. On 15 April 2019, an advisory opinion was received from the Medical Advisor, Army Review Boards Agency, in the processing of this case. The medical advisor reiterated the applicant’s periods of service and stated the applicant’s neurologist stated on 15 June 2006, that he had been seeing the applicant since September 2005 for multiple sclerosis and the applicant was becoming progressively more debilitated due to the progressive nature of the illness. Review the applicant’s electronic Department of Veterans Affairs medical record indicated that he was not service-connected. Based on the available medical record, he met medical retention states in accordance with chapter 3, AR 40-501 (Standards of Medical Fitness) at the time of separation from the Army. The applicant did not have a mitigating medical or behavioral health condition(s) for the offense(s) that led to his separation from the Army. 5. On 16 April 2019, the applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. He did not respond. 6. By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service; however, the separation authority may direct a General Discharge Certificate, if such is merited by the Soldier’s overall record during the current enlistment. 7. In reaching its determination, the Board can consider the applicant's petition and the FSM’s 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, 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed during this term of service prior to a lengthy AWOL offense, 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 AR20080014754 on 13 January 2009. 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 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier’s service generally had 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. Paragraph 3-7b (General Discharge) stated a general discharge was 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. c. Chapter 10 stated an individual who had committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service; however, the separation authority could direct a General Discharge Certificate, if such is merited by the Soldier’s overall record during the current enlistment. 2. 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 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. The 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, an injustice, or clemency 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) AR20160015316 5 1