ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 June 2019 DOCKET NUMBER: AR20160019288 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable condition (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 18 March 1986 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 he admits to being in a fight but he was pushed to defend himself. 3. The applicant enlisted in Regular Army on 6 July 1983. 4. The applicant received nonjudicial punishment (NJP) on 3 December 1984, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for breach of peace, using provoking words, assault on another Soldier with intent to commit bodily harm, and being drunk and disorderly, on or about 5 November 1984. 5. The applicant appeared before the board of officers until 20 February 1985 to determine if he should be separated due to the misconduct that resulted in the NJP he received on 3 December 1984. The board reviewed the testimony of the applicant and witnesses and recommended the applicant be discharged UOTHC. 6. The applicant received NJP on 13 November 1985, under the provisions of Article 15 of the UCMJ, for failing to go to his appointed place of duty, on or about 23 October 1985. 7. The applicant received six negative counseling statements between 6 February 1984 and 9 November 1985, for infractions including but not limited to, failure to follow verbal instructions, failure to follow written instructions, reporting late for duty on several occasions, and failure to pay a just debts. 8. In a civilian court, the applicant admitted to second degree burglary and was found guilty on 6 May 1985. 9. The applicant's command imposed a bar to reenlistment on 7 June 1985. 10. The applicant's commander notified the applicant on 6 September 1985 that he was initiating separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, by reason of the applicant's civilian conviction and assault on a fellow Soldier. The applicant acknowledged receipt of the proposed separation memorandum. 11. The applicant consulting with counsel on 17 September 1985, wherein he invoked his right to present his case to a board of officers. 12. The applicant's commander formally recommended the applicant's separation on 23 September 1985, under the provisions of Army Regulation 635-200, Chapter 14, paragraphs 14-5 (Conviction by a Civilian Court) and 14-12c (Commission of a Serious Offense). 13. The applicant was notified on 30 January 1986 that he would appear before a board of officers on 20 February 1986, convened to consider his possible separation from service prior to the expiration of his term of service (ETS). 14. A board of officers convened on 20 February 1986 and after careful consideration of the evidence presented, the Board recommended that the applicant be separated from service with a UOTHC discharge. 15. The separation authority approved the board's recommendation on 12 March 1986 and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, for conviction by a civilian court and commission of a serious offense, and directed that he be discharged UOTHC. 16. The applicant was discharged on 18 March 1986, under the provisions of Army Regulation 635-200, chapter 14, for misconduct – commission of a serious offense, and his service characterization was UOTHC. 17. The Army Discharge Review Board denied the applicant's request for an upgrade on 24 August 1988. 18. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. 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 record, 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 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 3-7b provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, 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. a. 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019288 0 3 1