ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 May 2019 DOCKET NUMBER: AR20170002208 APPLICANT REQUESTS: an upgrade to 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) 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 he would like an upgrade to his under other than honorable conditions discharge because he needs help. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 30 November 1977. b. On 22 November 1978, he accepted non-judicial punishment (NJP) for failure to be at his appointed place of duty. He was reduced to E-2 and 21 days extra duty. c. On 29 November 1978, he accepted NJP for failure to be at his appointed place of duty and forfeiture of pay $25.00 for one month. d. On 30 November 1978, he accepted NJP for failure to be at his appointed place of duty. He was reduced to E-1 and 7 days restriction and 7 days extra duty. e. On 7 December 1978, he accepted NJP for failure to be at his appointed place of duty. He received 14 days extra duty and forfeiture of pay $50.00 for one month. f. On 13 December 1978, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14-33b (1) of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), for misconduct. g. On 15 December 1978, he consulted with legal counsel and acknowledged: * he was advised of the basis for the contemplated separation action under provisions of chapter 14-33b(1), AR 635-200 * he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he may encounter substantial prejudice in civilian life * he was advised that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued * he elected not to submit a statement in his own behalf * he retained a copy of this request for discharge and of any enclosures submitted h. On 21 December 1978, the battalion commander recommended approval for discharge UP of AR 635-200, chapter 14 for misconduct. i. On 27 December 1978, the division commander recommend approval for discharge UP of AR 635-200, chapter 14 for misconduct. j. On 12 February 1979, the separation authority approved the applicant’s discharge UP of paragraph 14-34b, AR 635-200 and issued a Discharge Certificate Under Other Than Honorable Conditions (I believe the paragraph is not accurate based on the regulation in effect at the time. There is no 14-34b however, there is a 14-33b as stated on his initial paperwork in regards to the separation). k. On 27 February 1979, the applicant was discharged from active duty. His DD 214 (Report of Separation from Active Duty) shows the following: * block 9a: type of separation discharge * block 9d: discharge date 27 February 1979 * block 9c: reason for discharge Chapter 10, AR 635-200, SPD JFS (for the good of the service) * block 18a: he completed 1 year, 1 month and 26 days * block 26: awarded/authorized Marksmanship Badge with Rifle Bar (M-16), 1st Class (Hand Grenade) * block 27: he has 6 days of lost time 4. By regulation, action will be taken to separate a member for misconduct when it is clearly established that despite attempt to rehabilitate or develop him as a satisfactory 5. 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 completed prior to a pattern of misconduct, as well as the lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to 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. 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 AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable discharge) states than an honorable discharge is separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the Soldier’s current enlistment or period of obligated service with due considerations for the Soldier’s age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. b. Paragraph 1-13b (General discharge) states that a general discharge is separation from the Army under honorable conditions. It is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a Soldier whose military record and performance is satisfactory. c. Chapter 14, prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, and other acts or patterns of misconduct. 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 original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002208 3 1