IN THE CASE OF: BOARD DATE: 27 January 2020 DOCKET NUMBER: AR20160019681 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, 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 is requesting an upgrade of his discharge in order to apply for Department of Veterans Affairs (VA) benefits * while he was in the service he had anger issues * in addition to trying to adjust to military life, he also felt that he was being bullied * he was a small frame man and a fellow noncommissioned officer (NCO) was threatening him * he feared for his life at times * he is a much better person now * his service prior to his run-in with the NCO was honorable * he supported his wife's 25-year military career * he had every intention of making a career out of the military until this issue 3. The applicant enlisted in the Regular Army on 22 August 1975. 4. The applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on: * 23 September 1975 for breaking restriction * 5 November 1975 for failing to go at the time prescribed to his appointed place of duty * 20 January 1976 for being derelict in the performance of his duties (sleeping on duty) * 16 September 1976 for wrongful possession of marijuana * 7 March 1977 for assaulting another Soldier by cutting him on the hand and leg with a means likely to produce grievous bodily harm, to wit: a knife 5. On 27 July 1977, court-martial charges were preferred against the applicant for: * two specifications of disobeying lawful orders * communicating a threat towards another Soldier * three specifications of assaulting other Soldiers 6. On 26 September 1977, the applicant consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial due to charges being preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge. 7. He acknowledged in his request that he was making the request of his own free will and that he had not been subjected to any coercion whatsoever by any person. He also acknowledged he had been advised of the implications that were attached to it and that by submitting the request for discharge, he was admitting guilt of the charge(s) against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged. He also acknowledged he understood he could be issued an undesirable discharge and that he could be ineligible for many or all benefits administered by the VA, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He further acknowledged he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge. 8. On 5 October 1977, the separation authority approved the applicant's request for discharge with a characterization of service of under other than honorable conditions. 9. The applicant's DD Form 214 (Report of Separation from Active Duty) confirms he was discharged on 19 October 1977, under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions. 10. The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge on 19 June 1979. 11. On 23 December 2019, the Army Review Boards Agency clinical psychologist/medical advisor provided an advisory opinion. The advisor found no evidence of a behavioral health condition that would mitigate the applicant's acts of misconduct that led to his discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. The applicant was provided a copy of the advisory opinion on 5 January 2020 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, a medical advisory opinion, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's claim to have had anger and adjustment issues, and the review and conclusions of the medical advising official based on available medical records. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding the absence of any documented behavioral health conditions that may have mitigated his misconduct. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 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. Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may submit a request for discharge for the good of the service in lieu of trial by court- martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. 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. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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 on the basis of 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019681 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1