ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20160018623 APPLICANT REQUESTS: an upgrade to 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 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 215 * College Transcripts * Self-Authored Statement * Character Reference from X____ * Character Reference from X____ * Excerpts from Separation Packet * Page 2 of DA Form 20 * Conclusion and Recommendation from previous Board * Summary of Testimony and Evidence from previous Board * Congressional Correspondence * Copy of Identification 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 that he would like to change his undesirable discharge to an honorable or general discharge under honorable conditions. 3. The applicant provides: a. A detailed self-authored statement describing his experiences as it relates to his military and personal career (see attached). a. b. A character reference from X____ that states that the applicant has been a friend of his family ever since he can remember. He says that the applicant worked with his father for many years and was a constant presence in his childhood. He says that he is now a Navy Veteran now attending college and feels that the applicant was one of the most influential factors contributing to his enlistment and was a constant source of support during his time of deployment, fighting the war on terror. He believes that the applicant deserves an upgrade to his discharge and will do anything he can to help. c. A character reference from X____ that states he believes that whatever the applicant did to receive his current discharge characterization can be written off as youthful indiscretion. He says that he has known the applicant for over 20 years as both a coworker and friend and has never known him to be anything but an upstanding citizen. He says that the applicant is responsible for encouraging his son to join the United States Navy. He feels that the applicant is an honorable many and that should reflect in his discharge. 4. A view of the applicant’s record shows: a. He enlisted in the Regular Army on 25 September 1969. b. He served overseas in Germany from 17 March 1970 to 2 December 1971. c. On the following dates and times, he accepted non-judicial punishment (NJP) for the following offenses and therefore his punishments included: * 21 October 1970, for leaving his appointed place of duty; arms room guard o forfeiture of 7 day’s pay o reduction in rank to private first class (E-3) * 14 January 1971 for conducting himself in a disorderly manner at 0200 hours o 14 days extra duty o 14 days restriction to company area * 20 April 1971, for willfully disobeying a lawful order o 14 days extra duty * 17 May 1971, for failing to be at the appointed place of duty; formation o 14 days extra duty * 1 September 1971, for wrongfully appearing in formation without a haircut o 7 days extra duty d. Court-martial charges were preferred against the applicant on 21 October 1971. His DA Form (Charge Sheet) shows he was charged with two specifications of willfully disobeying a lawful order, one specification of larceny and one specification of forgery. a. e. On 18 November 1971, following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf f. His immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge. g. Consistent with the chain of command's recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an undesirable discharge certificate h. His DD Form 214 shows he was discharged on 2 December 1971, for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions. It also shows he completed 2 years, 2 months and 8 days of active service with no lost time. His record also shows he was awarded or authorized: * National Defense Service Medal * Expert Infantry Badge 5. By regulation, an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. 5. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of service completed prior to a pattern of misconduct, which included some of a criminal nature, the Board concluded the characterization of service received at the time of discharge was appropriate. 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. 5/21/2019 X 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. 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 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d provides that an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated 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. b. Paragraph 1-9e provides that a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to 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 of that regulation provides, in pertinent part, that an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. 3. 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. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In 1. determining whether to grant relief based on 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.