ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170001759 APPLICANT REQUESTS: * reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge to a general discharge * a personal appearance before the Board 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 * DA Form 3349 (Medical Condition – Physical Profile Record) 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 AC81-02331 on 24 June 1981 and AR20020002674 on 5 June 2008. 2. The applicant states he was never afforded the opportunity to appear before the board because he could not afford to travel to meet with the board. He has new information. He served in the Army from 31 October 1974 until his separation. He had not received any charges until he cut slits in his boots and wore them loosely. After that everything changed for him. He had bones removed from his toes. He is providing a copy of his physical profile that changed his life. He would like to appear before the Board. He needs to obtain a paper copy of his military record. His record will show how he was treated during his military service. 3. Review of the applicant’s record shows: a. He enlisted in the Regular Army on 1 November 1972 and he held military occupational specialty 76Y (Equipment Storage Specialist). He was promoted to pay grade E-2 on 12 February 1973. a. b. A DA Form 3349, dated 12 February 1973, shows he was medically qualified for limited duty for post-operative care. c. A DA Form 3647-1 (Clinical Record Cover Sheet), dated 13 August 1973, shows he was diagnosed with deferred probable lumber disc syndrome. d. A Standard Form (SF) 502 (Clinical Record – Narrative Summary) shows he was hospitalized from 13 to 31 August 1973, for probable lumbar disc syndrome. e. Two DA Forms 3349 show on/for: * 31 August 1973 – he was medically qualified for duty, with follow-up in the Psychiatry Outpatient Clinic * 10 September 1973 – he medically qualified for limited duty for painful feet f. An SF 511 (Clinical Record – Tissue Examination), dated 9 November 1973, shows the Podiatry Department diagnosed him with skin ellipses and bony tissue fragments of the second digit of his toes. g. On 6 February 1974, he was convicted by a special court-martial of one specification of being disrespectful to his superior commissioned officer. The court sentenced him to forfeiture of pay and a reprimand. The imposing authority approved the sentence on 14 February 1974. h. A DA Form 3349, dated 15 March 1974 shows he was medically qualified for duty for burning in the second digit of feet; the form shows he could cut slits in his boots and tie them loosely. i. On 19 March 1974, he accepted nonjudicial punishment for failing to go to his appointed place of duty and failing to stay on his post. His punishment included a reduction to pay grade E-1. He did not appeal. j. On 1 April 1974, he was convicted by a special court-martial of one specification of being absent without leave and disobeying a lawful order. The court sentenced him to confinement for 1 month and a forfeiture of pay. The imposing authority approved the sentence on 11 April 1974. k. He was reduced to pay grade E-4 on 11 April 1974. l. He provided and his record contains a DA Form 3349, dated 6 May 1974, showing he was medically qualified for limited duty for post-operative foot complications; the form shows he could wear his boots with cut-out toes. a. m. A DA Form 2800 (Criminal Investigation Division Report of Investigation), dated 19 July 1974, shows he was apprehended for accepting bribes at the Central Issue Facility, Fort Hood, TX. n. His DD Form 458 (Charge Sheet), dated 23 August 1974, shows court-martial charges were preferred against the applicant for one specification of wrongfully and unlawfully accepting money as compensation for services rendered on 15 July 1970 and one specification of being AWOL from 16 July to 21 August 1970. o. On 23 August 1970, after consulting with legal counsel. He was advised of the basis of contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice. Following this consult, he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). He acknowledged: * maximum punishment * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * he may be deprived of many or all Army benefits * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life p. Consistent with the chain of command recommendations, the separation authority approved his request for voluntary discharge in lieu of trial by court-martial with the issuance of an Undesirable Discharge Certificate, and reduction to the lowest enlisted grade (if applicable). q. Accordingly, the applicant was discharged from active duty on 25 September 1974. His DD Form 214 show she was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service and he was issued an Undesirable Discharge Certificate. His DD Form 214 shows he completed 1 year, 7 months, and 15 days of active service. He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar. 4. On 31 July 1979, the Army Discharge Review Board determined that he was properly discharged and denied his petition for a change in the type and nature of his discharge. 5. On 24 June 1981 and 5 June 2008, the ABCMR denied his petitions for an upgrade of his discharge. 1. 6. By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes an undesirable discharge, may submit a request for discharge in lieu of trial by court-martial. 7. 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. 8. By regulation (AR 15-185), applicant do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. BOARD DISCUSSION: After review of the application and all evidence to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that they could make a fair and equitable decision in the case without a personal appearance by the applicant. Additionally, the Board found there to be insufficient evidence to grant relief. Based upo the relatively short term of service completed prior to a pattern of misconduct and the lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/28/2019 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. Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) – a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 – an individual who has committed an offense or offenses, the punishment for which included an undesirable discharge, could submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service; however, the separation authority could direct a General Discharge Certificate, if such was 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. 1. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.