ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 October 2019 DOCKET NUMBER: AR20170002815 APPLICANT REQUESTS: * General/under honorable conditions character of service * Change narrative reason for separation 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) 9 January 2017 * DA Form 2-1 (Personnel Qualification Record) * DD Form 214 (Report of Separation from Active Duty) for the period ending 24 April 1979 * DD Form 214 for the period ending 17 October 1979 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 (ABCMR) 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, in effect, a change in his discharge characterization and narrative because it was inequitable. He was in his reenlistment only a short period of time in 1979 before he received the discharge under conditions other than honorable. He feels he served his country from 1975 to 1979 as proven by his honorable discharge received a few months prior to the under conditions other than honorable discharge. He has not been able to receive any benefits the he is rightfully due. He also thinks his discharge is inequitable because he has no documentation that explains circumstances for the discharge conduct necessitated the character of service discharge. His DA For 2-1 (Personnel Qualification Record) section VII-Current and Previous assignments mentions the discharge and DD Form 794 (Discharge Under Other Then Honorable Conditions) which he has never seen and might shed light on the reason the discharge. 3. The applicant provides: a. His DD Form 2-1 (Personnel Qualification Record) section VII-Current and previous Assignments (item 35) principal duty showing various assignments and stamped-Discharge under Conditions Other Than Honorable and DD Form 794A with date 17 October 1979 reflected. b. DD Form 214 period ending 24 April 1979 that reflects an honorable discharge. c. DD Form 214 period ending 17 October 1979 that reflects under conditions other than honorable. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 8 September 1975. b. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 on/for: * 13 April 1977, for leaving his M16A1 unsecured * 4 May 1978, for as a result of previous indulgence in intoxicating liquor incapacitated for the proper performance of his duties, his punishment in part * 9 May 1977, for failing to go at the time prescribed to his appointed place of duty. His punishment consisted, in part, of reduction to private (PV2)/E-2. * 12 June 1978 he consulted with a lawyer concerning the alledged offense * 15 June 1978, for disrespectful language toward his superior noncommissioned officer * 5 September 1978, for stealing a pair of sunglasses, of a value of about $10, the property of the United States Armed Forces. He was advised of his rights regarding Article 15. He waived his right to consult a lawyer concerning the alledged offense and Article 15 proceeding c. Orders 114-137 dated 24 April 1979 shows the applicant was discharged from the regular Army and having enlisted/reenlisted was assigned/reassigned to 7th Adjutant general Replacement Company, Fort Ord, California with a reporting date of 15 October 1979. d. On 24 April 1979, DD 214 (Report of Separation from Active Duty), the applicant was discharged with an honorable discharge. He completed 3 years, 9 months, and 17 days with no lost time. e. He reenlisted in the Regular Army on 25 April 1979. f. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 on/for 22 June 1979, for , as a result of a previous indulgence in intoxicating liquor, incapacitated for the proper performance of his duties, his punishment consisted of in part, reduction to private first class PFC/E3 (suspended for a period of 60 days). The suspension of the punishment of reduction to E3 imposed against the applicant was vacated. The unexecuted portion of the punishment was duly executed. g. 26 July 1979, DA Form 268 (Report for Suspension of Favorable Personnel Actions) flag initiated. Soldier is receiving a Chapter 10 (Court Martial Action) and the date of his departure was unknown at the time. h. 20 August 1979 DD Form 458 (Charge Sheet) shows: * charge I, specification 1 on or about 25 July 1979, wrongfully communicated a threat to do bodily harm * specification 2 having been duly restricted to the limits of his place of duty, on or about 16 July 1979, break said restriction * charge II, specification on or about 26 July 1979, attempt to steal a metal money bag, of a value of about $100, from the Fuerth Newspaper Company i. On 29 August 1979, the applicant's immediate commander stated due to the seriousness of the offenses charged, he did not believe a court martial convened could adjuge appropriate justice in the applicant’s case. He recommended trial by special court martial empowered to adjudge bad conduct discharge j On 6 September 1979 (the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separation), chapter 10, for the good of the service. In his request for discharge, he acknowledged his understanding that: * by requesting discharge, he stated he was making this request of his own free will, and was not coerced; he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad- conduct or dishonorable discharge * he desired no further rehabilitation and desired to perform no further military service * he consulted with legal counsel. He was advised of the nature of his rights under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him * he acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge * he was advised he could submit any statements he desired in his own behalf * he elected not to submit any statements in his behalf k. On 6 September 1979, the applicant requested discharge. He consulted with legal counsel who advised him of the basis for the separation action under Army Regulation 635-200, paragraph 10 for: * communicating a threat * breaking restriction * attempting to steal a money box of a value of about 100 duetche marks. * he acknowledged his understanding of the rights available to him and the effect of any action taken by him in waiving his rights l. Orders 284-3 dated 11 October 1979 shows the applicant was assigned to the transfer activity for separation processing, assigned to United States Army Transfer Point Ft. Dix, New Jersey with a scheduled date of discharge of 18 October 1979, his rank on the order was private/E-1. m. On 17 October 1979, the applicant was discharged under the provisions of AR 635-200, paragraph 10, for the good of the service in lieu of trial by court martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as under conditions other than honorable. He completed 3 years 7 months, and 17 days of active service during this period and had no lost time. 5. He applied to the Army Discharge Review Board (ADRB) within that board's 15-year statute of limitations. The ADRB letter dated 3 August 1982 reflects the Secretary of the Army has directed that the applicant be advised that his request for a change in the type and nature of his discharge had been denied. It further stated that although his case was denied by the ADRB he might apply to the Army Board for Correction of Military Records. That Board was not bound by the decision of the ADRB. 6. By regulation (AR 635-200), chapter 10, 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. * Paragraph 5-6 (Rules for Completing the DD Form 214) states for: * item 24 (Character of Service), Correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation. The character of service must be one of the seven designations: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct dishonorable, dismissed or uncharacterized * item 28 (Narrative Reason for Separation). This is based on regulatory or other authority and can be checked against the cross reference in Army Regulation 635-5-1. 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. 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 relief was not warranted. One potential outcome discussed was to grant a discharge upgrade request based upon the passage of time and the guidance on liberal consideration. However, based upon the pattern of misconduct, as well as a lack of post-service 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 and the narrative reason for separation were appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : 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 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 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provides, in pertinent part, 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. Army Regulation (AR) 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relating to transition management. It consolidates the policies, principles of support, and standards of service regarding processing personnel for transition. It explains separation document preparation, distribution, correction, and transition processing. It states in: a. Paragraph 5-6 (Rules for Completing the DD Form 214) states for: * item 24 (Character of Service), Correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation. The character of service must be one of the seven designations: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct dishonorable, dismissed or uncharacterized * item 28 (Narrative Reason for Separation). This is based on regulatory or other authority and can be checked against the cross reference in Army Regulation 635-5-1. 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) AR20170002815 6 1