ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 May 2019 DOCKET NUMBER: AR20170004012 APPLICANT REQUESTS: Reconsideration of his previous of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application of Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * five letters of support 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 AR20040007520 on 30 June 2005. 2. The applicant states he was a minority Soldier in the unit and his leadership was out to get him. He was accused and found guilty without a request for him to write down where, when, what, and how to defend himself. He adds that there was no investigation conducted and they basically made their decision without any facts or evidence. He states he is not a thief and was never involved in that crime. The applicant has never been arrested for stealing and is married and try to live a respectful life post military. 3. Review of the applicant’s records shows: a. He enlisted in the Regular Army on 8 March 1983. He was advanced to private first class (PFC) on 11 January 1983. b. On 20 April 1984, at Fort Sill, OK, his commander initiated a Bar to Reenlistment Certificate against him citing his less than satisfactory performance, need for constant supervision, poor attitude, fighting in the barracks, and dismissal from a military course. The bar was approved by his battalion commander. c. He served in Turkey from 7 June 1984 to 2 September 1985. a. d. On 8 September 1984, the applicant accepted nonjudicial punishment under Article 15 for being derelict in performance of his duties, in that he negligently failed to maintain control and self-discipline as to not endanger the lives of other Soldiers. His punishment was reduction to E-2, restriction, extra duty, and forfeiture of pay. e. In March 1985, while stationed in Turkey, the applicant was investigated by the Air Force Office of Special Investigations for allegedly robbing and threatening another Soldier. In a sworn statement the applicant denied any involvement in the robbery; however, a polygraph examination disclosed that he was deceptive in his denial. f. Court-martial charges were preferred against him 15 May 1985. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of theft (stealing, by means of force and violence, currency from another Soldier). g. The facts and circumstances surrounding the applicant’s discharge proceeding are not in the available records; however, on 3 July 1985, he was discharged under the provisions of chapter 10 (in lieu of trial by court-martial) of Army Regulation 635-200 (Personnel Separations) with an under other than honorable conditions characterization of service. h. His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he completed 2 years, 3 months and 26 days of active service. It also shows he was awarded or authorized: * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar 4. By regulation, a member who has committed an offense 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. 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. 1. 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 that relief was not warranted. Based upon the seriousness of the misconduct and some involving dangerous behavior that could have hurt other Soldiers, 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. 1535874 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) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. The regulation states: a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. 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 that a Soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 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- 1. 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.