ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20170002344 APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Online Application for Correction of Military Record) * Statement of Support * Counsel’s Statement of Support * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 AC93-07649 on 14 July 1993. 2. The applicant states: a. He originally appealed to the Discharge Review Board over 32 years ago and was refused a correction of his records in 1985. He has always maintained an outstanding and honorable record, but his discharge never reflected that. He has been denied over the years, opportunities to serve in the Army Reserves, Disabled Veterans Affairs benefits, and credit for 10 years of government service that could have counted towards his retirement for the government. b. He further states he made an error in an allowance of $61.62 in which he claimed that he was not entitled to when he transferred to Hawaii. For that infraction he received an unjust discharge of under other than honorable conditions. He would like the Board to consider his military record and his outstanding service as a military officer, as this is his final appeal for correction. 3. The applicant provides: A statement of support dated 11 January 1985, signed by a Staff Judge Advocate (SJA) (Lieutenant Colonel, X), states the applicant was charged with seven specifications alleging that he violated Article 132, Uniform Code of Justice (UCMJ), by making and presenting false claims against the Government and one specification alleging that he violated Article 134, UCMJ, by unlawfully obtaining Government Services. An investigation by the Army Criminal Investigation Command revealed that the applicant, while legally separated from his wife, moved to HI on 14 January 1984 with X___ and her son, pursuant to his reassignment to Tripler Army Medical Center. X___ and her son did not travel to HI at the Government expense, their possessions were apparently included in the applicant’s household goods shipment, and they resided with him at the Hilton Hawaiian Village from 22 January through 30 January 1984 (see attached statement). 4. A review of the applicant’s service record shows: a. He enlisted as prior service from the United States Navy from 24 June 1964 to 24 March 1970 in the United States Army Reserves (USAR) as a private first class on 30 September 1972 to 17 May 1974. He was appointed in the Regular Army on 18 February 1984 as a 1st Lieutenant. b. He served in Vietnam from 1 August 1968 to 1 February 1970. He served in Hawaii from 22 January 1984 to 23 October 1984. c. On 14 September 1984, his counsel submitted the applicant’s resignation for the good of service under the provisions of Chapter 5, AR 635-120 (Officer Resignations and Discharges). His resignation was to be accepted with an under other than honorable discharge. The details, facts and circumstances surrounding his discharge are not available for the Board’s review. d. On 12 October 1984, the applicant’s resignation for the good of the service with a discharge under other than honorable conditions was approved. e. On 25 October 1984, he was discharged from active duty with an under other than honorable conditions discharge characterization of service. His DD Form 214 (Report of Separation from Active Duty) shows he completed 10 years, 2 months and 4 days of active service. It also shows he was awarded or authorized: * National Defense Service Medal * Good Conduct Medal (2nd Award) * Combat Action Ribbon * Presidential Unit Commendation * Vietnam Service Medal * Vietnam Cross of Gallantry with Palm * Vietnam Campaign Medal * Army Commendation Medal (2nd Award) * Army Service Ribbon * Navy Commendation Medal with “V” Device f. On 7 January 1993, the Army Discharge Review Board (ADRB) determined that applicant was properly and equitably discharged. Accordingly, his request for a change in the character and/or reason of his discharge was denied. g. The applicant petitioned the Army Board for Correction of Military Records ABCMR 14 July 1993. After careful review of his application, military records, and all other available evidence, the ABCMR determined that the application has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed and denied each of his previous requests. 5. By regulation (AR 635-120), chapter 5 states that an officer may submit a resignation for the good of the service when court-martial charges are preferred, he or she is under a suspended sentence of dismissal. 6. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the fraudulent claims submitted by the applicant and the amount of money involved in those claims, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 to amend the decision of the ABCMR set forth in Docket Number AC93- 07649 on 14 July 1993. 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) 600-8-24 (Officer Transfers and Discharges) currently in effect a. Paragraph 1-21a (Honorable Discharge) provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. b. Paragraph 1-21b (General Discharge) provides that a general discharge is a separation from the Army under honorable conditions is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-120 (Officer Resignations and Discharges) in effect at the time provides policies and procedures for separating officers from active duty, and implements the provisions for DOD directive 1332.29. Chapter 5 of this regulation states an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward a trial by general court martial. When he or she is under a suspended sentence of dismissal; or he or she elects to tender a resignation because of reason outlined in AR 635-100, paragraph 5- 11a. (If the officer the officer elects to resign after general court-martial charges have been preferred, para 5-2 applies. If he or she elects to request separation after being recommended for elimination, cha4 or 8 as appropriate, applies. 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 //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002344 4 1