IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20160016302 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 1. IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20160016302 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests, in effect, reconsideration of his previous request for an upgrade of his discharge under other than honorable conditions to honorable. 2. The applicant states: * he was not able to make his Army National Guard meetings and was ordered to active duty in the Army * being in the Army and serving his country was a dream come true * he was given a bronze medal for winning a 24-hour relay * he was a post runner, physical training runner, and a guide-on runner * he was horse playing that resulted in a fight * he was given a soda spiked with a drug and was high out of his mind and couldn't defend himself in front of his commander * he was not given fair treatment and had no one on his side as far as legal defense * he requests an upgrade of his discharge to honorable because he was thrown out of the Army for horse playing that got out of hand THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) with supporting documents: no additional evidence. 2. The following evidence from the applicant's service records and Department of the Army and Department of Defense records and systems: * DA Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States) * DD Forms 214 (Report of Separation from Active Duty), dated 2 October 1977 and 25 June 1979 Enclosure 2 * Memorandum, Headquarters Company, 35th Engineer Brigade (Corps), dated 15 February 1978, subject: Commander's Statement in Accordance with Paragraph 6d(2), Army Regulation 135-91 (Policies and Procedures Governing Satisfactory Participation) * Memorandum, Headquarters and Headquarters Company, 35th Engineer Brigade (Corps), dated 28 February 1978, subject: Request for Order to Involuntary Active Duty * 1st Indorsement, Missouri Army National Guard, dated 3 March 1978, subject: Request for Order to Involuntary Active Duty (Applicant) * Orders 89-190, Headquarters, 5th U.S. Army, dated 8 May 1978 * DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 5 October 1978 and 8 June 1979 * Army Board for Correction of Military Records (ABCMR) Docket Number AR20070015030, dated 4 March 2008 * Memorandum, ABCMR, dated 6 March 2008, subject: ABCMR Record of Proceedings for (Applicant) * DD Form 215 (Correction to DD Form 214) REFERENCES: 1. Army Regulation 135-91 (Policies and Procedures Governing Satisfactory Participation), in effect at the time, defined Army National Guard and U.S. Army Reserve service obligations and prescribed policies and procedures governing methods of fulfillment, satisfactory participation, and enforcement. a. Paragraph 4-11 (Unexcused Absence from Unit Training Assemblies) provided for when a member failed to participate satisfactorily when he or she accrues a total of nine or more unexcused absences from scheduled unit training in any 1-year period. A member who failed to participate satisfactorily in this respect would be ordered to active duty for a period, which when added to his or her prior service on active duty, active duty for training, annual training, or full- time training duty, would total 24 months. b. Paragraph 4 (Orientation) provided guidance for unit commanders to assure that each enlisted member was fully aware of and understood his or her obligations, the prerequisites for maintaining satisfactory participation, and the actions which would result from unsatisfactory participation. c. Paragraph 4-12c(2) provided that mail that was refused, unclaimed, or otherwise not delivered could not be used as a defense against unexcused absences when notices were correctly addressed to the latest official mailing address furnished by the unit member. 2 2. 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 1-9d stated 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. Paragraph 1-9e stated 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 1-9f stated an undesirable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or security reasons. d. Paragraph 9-13 stated that when an individual is to be discharged from the service with an undesirable discharge, he will be reduced to the lowest enlisted grade. e. Chapter 10 provided that an individual who committed an offense or offenses, the punishment for which under the UCMJ and the Manual for Courts- Martial, included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service. The request could be submitted at any time after charges were preferred and must have included the individual's admission of guilt. If the member elected to submit a request for discharge for the good of the service after receiving counseling, he would personally sign a written request certifying that he had been counseled, that he understood his rights, that he could receive a discharge under other than honorable conditions, and that he understood the adverse nature of such a discharge and the possible consequences. Although an honorable or general discharge was authorized, a Discharge Certificate under Other than Honorable Conditions was normally furnished to an individual who was discharged for the good of the service. 3. 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 ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The 3 applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. 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. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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. DISCUSSION: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20070015030 on 4 March 2008. 2. He enlisted in the Army National Guard on 22 July 1977. 3. He was ordered to initial active duty for training effective 2 October 1977. He completed training and was released from active duty to the control of the Missouri Army National Guard effective 25 December 1977. 4. He exceeded the number of unexcused absences allowed within a 1-year period and he was involuntary ordered to active duty effective 21 June 1978. 5. He received nonjudicial punishment under the provisions of Article 15, UCMJ, on 5 October 1978 for: 4 * willfully disobeying a lawful order from a superior commissioned officer on or about 27 September 1978 * being disrespectful in language toward a superior noncommissioned officer on or about 27 September 1978 * being disrespectful in deportment toward a superior noncommissioned officer on or about 27 September 1978 * assaulting a private first class or about 27 September 1978 * wrongfully communicating a threat to a private first class on or about 27 September 1978 6. He was advanced to private two/E-2 effective 21 November 1978. 7. He received nonjudicial punishment under the provisions of Article 15, UCMJ, on 8 January 1979, for wrongfully appearing at Building 2933 without his black leather gloves. 8. He was advanced to private first class/E-3 effective 21 April 1979. 9. His court-martial charge sheet and separation packet are not available for review. 10. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 on 25 June 1979 under the provisions of Army Regulation 635-200, chapter 10, and assigned separation program designator code JFS (Administrative Discharge – Conduct Triable by Court-Martial). He completed 1 year and 4 days of net active service during this period. His service was characterized as under other than honorable conditions. 11. On 3 January 2008, the Army Discharge Review Board determined the statutory period for appeals prohibited the board from processing applications received after 15 years from the date of discharge or release from active duty. The board added his request for discharge upgrade to his ABCMR case that was currently in process. 12. On 4 March 2008, the ABCMR denied his request for a discharge upgrade. The Board determined the evidence presented was insufficient to warrant upgrading his discharge. 13. He states he was not given fair treatment and had no one on his side for legal defense matters. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service in lieu of trial by court-martial. In the absence of evidence to the contrary, 5 it is presumed that he voluntarily requested discharge in lieu of trial by court- martial. It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. 14. The Board should consider the applicant's statement in determining whether to grant relief on the basis of equity, injustice, or clemency grounds in accordance with the Under Secretary of Defense for Personnel and Readiness guidance. //NOTHING FOLLOWS// 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20160016302 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 AR20070015030 on 4 March 2008. . 5/31/2019 CHAIRPERSON Signed by: 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. Enclosure 1