ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20160019123 APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: a self-authored statement 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 AR20150012402 on 23 August 2016 and Docket Number AR20090010867 on 3 December 2009. 2. The applicant states: * he was not afforded any legal representation before being chaptered out of the Army * while on active duty, he had knee surgery, and placed on convalescent leave * during that time he was forced to disobey doctors’ orders and stand in formation * he states his file is missing documentation pertaining to his discharge * he feels he received unfair and unequal justice 3. Review of the applicant’s records shows: a. He enlisted in the Regular Army on 1 August 1978. b. On 18 December 1978, he accepted nonjudicial punishment (NJP) for wrongfully possessing marijuana. c. He was placed on temporary profile, no crawling, stooping, running, jumping, marching or standing for long periods until 14 May 1979. d. On 20 August 1980, he accepted NJP for failing to go at the time prescribed to his appointed place of duty. He was reduced in rank to private first class/E3. e. On 24 December 1980, he had knee surgery and was placed on a temporary profile until 24 January 1981. f. On 4 March 1981,his commander initiated a bar to reenlistment against him citing three instances of NJP and a pending instance for possession of marijuana. The commander stated the applicant had been continually counseled by his chain of command but showed no improvement despite correctional and disciplinary action. He was provided a copy of this bar, but elected not to submit a statement in his own behalf. g. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his service record contains: (1) Orders 122-414, issued by Headquarters, 7th Infantry Division, Fort Ord, dated 17 June 1981, assigned him to the U.S. Army Separation Transfer Point, effective 23 June 1981, in the rank of private, for the purpose of separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). (2) DD Form 214 (Certificate of Release or Discharge from Active Duty) that show she was discharged on 23 June 1981 under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of court-martial, with a character of service of under other than honorable conditions. This form shows: * he completed 2 years, 10 months and 18 days of active service with lost time from 2 to 3 May 1981 and 8 to 10 May 1981 * he was awarded the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars 4. By regulation, discharges under the provision of AR 635-200, chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court-martial. The issuance of a discharge under the provisions of chapter 10, AR 635-200 required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by a court-martial. 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 warranted. One potential outcome discussed was to deny the application based upon the extremely short term of service completed prior to multiple violations of the UCMJ occurring. However, based upon the type of misconduct, the passage of time and the liberal consideration and clemency guidance on cases similar to these, the Board concluded that granting clemency to the applicant by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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 AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). 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 10 of that regulation provides that a Soldier 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. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. 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 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 (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. ABCMR Record of Proceedings (cont) AR20160019123 3 1