ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20170000466 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 (Certificate of Release or Discharge from Active Duty) * Caretaker Statement 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 since his separation from the military he has not been in any trouble. He has taken care of his late mother for the past 15 years until her death in October of 2015. 3. The applicant provides a statement from a friend that states she has been the caretaker of his mother who needed around the clock care for 15 years. That care ended in September 2015 with her death. She states he then sought employment and obtained a job at Bay Medical Sacred Heart Hospital in January of 2016 where he worked for about 6 months. That job ended due to unknown health issues (at the time) that made it difficult to perform his duties. She goes on to say that the applicant has been seeking health care but it has been difficult being that he has no money and no health care benefits. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 5 December 1979. b. He served in Panama from 30 June 1981 to 15 July 1982. a. c. On 28 January 1981, he accepted nonjudicial punishment (NJP) for being disrespectful towards his superior commissioned officer and willfully disobeying his superior noncommissioned officer. His punishment consisted of reduction to E-2. d. On 10 March 1981, he accepted NJP for assault and was reduced to the grade of private/E-1. e. While still in Panama, on 24 May 1982, the applicant received orders reassigning him to the US Army Transfer Point for separation processing and received discharge orders with an effective date of 16 June 1982. f. On 15 June 1982, a call was made from overseas to CONUS (Continental United States) regarding the applicant’s chapter 10 and characterization of applicant’s discharge as notated on DA Form 751 (Telephone or Verbal Conversation Record). g. The applicant’s record is void of the complete facts and circumstances that led to his separation. However, his service record contains a DD Form 214 that shows he was discharged 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, 6 months, and 12 days of active service with no lost time. He was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon 5. By regulation, a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts- Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. 6. 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. 1. 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. Although the circumstances that led to the separation being unavailable for consideration, the Board found insufficient evidence submitted by the applicant to show he demonstrated growth from the incidents that led to the discharge. The Board recommended that if the applicant wishes to submit a request for reconsideration that he include statements from family, friends and/or community leaders to show that he has learned from the circumstances which led to the discharge. For that reason, the Board recommended denying the applicant’s request for relief. 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. 5/7/2019 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 (AR) 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a provided 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 or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b provided that a 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. c. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, includes a bad conduct or dishonorable discharge, may submit a request for discharge 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 1. original discharge had been for the revised reason or had the upgraded service characterization.