2ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20170001849 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character letter from JCRF, dated 28 November 2016 * Negative Police History Certificate from Puerto Rico, dated 28 November 2016 * Character letter from JFRG, dated 29 November 2016 * Recognition letter from State Representative, dated 10 April 2007 * Certificate of Honor from State Representative, dated 25 February 2005 * Scholastic Security training, dated 27 November 1991 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 AR2003089920 on 9 December 2003. 2. The applicant states his life has changed and the reasons for which he was given a discharge do not merit the under other than honorable conditions discharge. He states he was and still is an honorable servicemen of the community. 3. The applicant provides several character references attesting to his good conduct since his separation from active duty and his post-service accomplishments. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 5 October 1970. b. He accepted non-judicial punishment (NJP) under the provisions of Article 15 on seven occasions for the offenses indicated: * 15 November 1970, failing to be at his appointed place of duty * 27 April 1971, absenting himself from his organization without proper authority * 1 November 1971, absenting himself from his organization without proper authority, failing to be at his appointed place of duty, willful disobedience of a lawful order from a superior, and missing a unit movement * 23 December 1971, failing to be at his appointed place of duty * 24 December 1971, willful disobedience of a lawful order for leaving the restricted limits of the company area, willful disobedience of a lawful order from a superior, and failing to be at his appointed place of duty * 24 February 1972, willful destruction of military property, willful disobedience of a lawful order from a superior and wrongful communication of a threat to a superior * 3 April 1972, failing to be at his appointed place of duty c. On 16 December 1971, the applicant’s commander recommend a Bar to Reenlistment and it was approved on 3 January 1972. d. The applicant’s Enlisted Qualification Record (DA Form 20) shows, in Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS), that the applicant had two separate AWOL periods between 1 December 1971 and 1 June 1972. This resulted in 21 days of time lost. e. His DA Form 20 also shows in Item 33 (Appointments and Reductions) that he was promoted to private first class/E-3 on 26 May 1971, the highest rank he attained while servicing on active duty. f. The specific facts and circumstances surrounding the applicant’s discharge processing are not on file. However, the record does include a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), that contains the authority and reason for the applicant’s discharge. The applicant was discharged on 6 September 1972, under the provisions of chapter 10 army regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service, in lieu of court martial and he received an Under Other Than Honorable Discharge. His DD Form 214 shows he completed 1 year, 10 months and 11 days of creditable active service, with 21 days of lost time due to AWOL. 5. By regulation, AR 635-200, chapter 10 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. A discharge under other than honorable conditions is normally considered appropriate. 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. 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 there is insufficient evidence to grant relief. Based upon the short term of service prior to a pattern of misconduct, which included violent behaviors towards others, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, 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. 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 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 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. A discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 1-9d (Honorable Discharge) provides 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 of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) provides that a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record c. Chapter 10 of that regulation provides, in pertinent part, that an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. 4. 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) AR20170001849 4 1