ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20160018770 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter of Commendation * Excerpt of DD Form 458 (Charge Sheet) with a hand written personal note * Acknowledgement Letter from Army Review Boards Agency (ARBA) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 3 March 1970 * DD Form 214 (Report of Separation from Active Duty), for the period ending 10 April 1978 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 is requesting an upgrade to his current under other than honorable conditions discharge. His punishment should have been an Article 15 or a letter of reprimand. He was threatened with a court martial by his chain of command because he refused to disclose the names of other Soldiers who were involved. He admits to unauthorized use of a military vehicle and states that he returned the vehicle undamaged. He states the he understands he made a bad decision, but feels his punishment was extreme. He also states that he has been married for 43 years, he attends church regularly, and he is an honorable man but not without fault. Lastly he loves our country and he encouraged others to serve. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army (RA) on 31 July 1968. b. He served in Korea from 14 January 1969 to 26 November 1969. c. He was released from active duty on 3 March 1970. c. He enlisted in the RA on 5 February 1975. d. He served in Germany from 1 October 1976 to 17 March 1978. e. He accepted nonjudicial punishment on 27 June 1977 for violating a lawful general regulation. f. Court-martial charges were preferred against the applicant on 27 February 1978. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of willfully disobeying a lawful order from his superior noncommissioned officer and one specification of wrongfully appropriating a truck, property of the U.S. g. Subsequent to legal counsel, the applicant requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations- Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service). He acknowledged: * maximum punishment * the possible effects of an undesirable discharge and the result of the issuance of such a discharge * he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration * he may be deprived of his rights and benefits as a veteran under both Federal and State laws h. He elected not to submit a statement in his own behalf. i. The immediate commander recommended approval and stated the applicant’s duty performance had been marginal at best during the previous 10 months. j. Consistent with the chain of command’s recommendations, on 20 March 1978, the separation authority approved the applicant’s request for discharge. He would be reduced to the lowest enlisted grade and issued an Under Than Honorable Conditions Discharge Certificate. k. On 4 April 1978, he was discharged from active duty under the provisions of AR 635-200, chapter 10 (Discharge for the Good of the Service). His DD Form 214 shows he was discharged under chapter 10, AR 635-200, with an under other than honorable conditions characterization of service. He completed 3 years, 2 months and 6 days of active service. It also shows he was awarded or authorized National Defense Service Medal and Armed Forces Expeditionary Medal (Korea) 4. By regulation, 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. An Under Other Than Honorable Discharge Certificate normally is appropriate for a member who is discharged 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 offense of wrongful appropriation of military property being a portion of the misconduct, as well as the term of service reflected being relatively short prior to the misconduct, the Board concluded there was insufficient evidence to upgrade the characterization of service of the applicant. 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. 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 Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel: a. Paragraph 1-13a (Honorable Discharge) 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 or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General Discharge) General Discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 10 of that regulation states a member who has committed an offense or offenses the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable discharge is normally appropriate for a member who is discharged for the good of the service. 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 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20160018770 4 1