ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 July 2019 DOCKET NUMBER: AR20170004252 APPLICANT REQUESTS: an upgrade of 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) * Letter of Support, X___, dated March 9, 2016 * Letter of Support, X___, dated March 17, 2016 * Letter of Support, Detective X___ 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 his unit at the time was in such disarray that he had never seen anything of that nature in his life. His unit made it unbearable to get any work done. He had worked in other units that were as hard but they were up to par with their working conditions according to the applicant. 3. The applicant provides: a. A letter of support from Mr. X___, dated 9 March 2016, states that he has known the applicant for many years and they live in the same neighborhood together. He describes the applicant as a man of great moral character who is dependable, reliable, honest and all around good man. He further states that has never witnessed him being anything other than what he states that he is and he is honored to write this letter for him. He further states the applicant is a man of a certain position who owns and operates his own business and he is a Deacon in the church. b. A letter of support from Mr. X___, dated 17 March 2016, states that he has known the applicant for many years and he is a very good man. He is a very caring person who will do what he can to the best of his abilities to help out others in need and there is no better man than him. c. A letter of support from Detective X___ who states that the applicant has many fine qualities about him and he has known him as a friend for several years. He states that he has had the chance to have known him and without a doubt he is a person of very good moral character. He has never had a bad word to say about anyone and he is a hardworking, dedicated individual who never leaves a job unfinished according to the detective. On a personal level he really like the applicant and has no doubts about his capabilities to be successful at whatever he strives for. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 30 June 1970. b. On 12 June 1972, he was convicted by a general court-martial of one specification of conduct of a nature to bring discredit upon the Armed Forces by forcing another Soldier to drive to an uninhabited road, two specifications of stealing a wallet, and one specification of unlawfully kicking and striking a soldier on the head and body. The court sentenced him to bad conduct discharge, forfeiture of all pay and allowances, reduction to E-1, and confinement at hard labor for 1 year. c. General Court-Martial Order Number 30, dated 20 July 1972, shows the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for one year, forfeiture of $100.00·pay per month per month for six months, and reduction to E-1. The convening authority further: * ordered the execution of that portion adjudging a bad conduct discharge and confinement at hard labor for one year is suspended for one year, at which time, unless the suspension is sooner vacated the suspended portions of the sentence will be remitted without further action * ordered sentence to confinement at hard labor for one year was deferred on 20 June 1972 and the deferment is rescinded effective this date * ordered the forfeiture to apply to pay becoming due on and after the date of this action * ordered the record of trial forwarded to the Judge Advocate General of the Army for appellate review * ordered the applicant retained in the unit pending the appellate review d. He was honorably discharged from active duty on 8 November 1973 for immediate reenlistment. He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service. e. He reenlisted on 31 August 1976 and he was again honorably discharged on 14 February 1978 for immediate reenlistment. He was issued a DD Form 214 (Report of Separation from Active Duty) for this period of service. g. He reenlisted in the RA on 15 February 1978 and on 20 March 1981. He served in Germany from 17 May 1978 to 9 June 1981. h. On 29 March 1985, he was reported absent without leave (AWOL) and on 30 April 1985, he was dropped from the rolls. On 14 June 1985, he returned to military control at Fort Bragg. i. On 19 June 1985, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of AWOL from 29 March 1985 to 14 June 1985. j. On 19 June 1985, he consulted with legal counsel and subsequently requested discharge under the provisions of AR 635-200, Chapter 10 (Discharge for the Good of the Service), in lieu of trial by court-martial. He acknowledged: * he is making this request of his own free will with no coercion * prior to completing his form, he consulted with counsel for consultation who has fully advised him of the nature of his rights under Uniform Code of Military Justice * he may expect to encounter substantial prejudice in civilian life because of an other than honorable discharge * once his request for discharge is submitted, it may be withdrawn only to consent with consent of the commander * maximum punishment * he is guilty of the charge(s) against him or of lesser included offense(s) * he did not desire to make a statement on his own behalf * he may be deprived of many or all Army benefits administrated by the Veteran Administration k. On 15 July 1985, consistent with the chain of command recommendations, the separation approval authority approved the applicant’s request for discharge for the good of the service He would be issued an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade. l. On 7 August 1985, he was discharged from active duty with an under other than honorable conditions characterization of service. His DD Form 214 shows he was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service. He completed 7 years, 3 months, and 9 days of active service with lost time from 30 March 1985 to 13 June 1985. It also shows he was awarded or authorized: * Parachutist Badge * Driver Mechanic Badge * Army Good Conduct Medal (3rd Award) * Army Achievement Medal * Overseas Service Ribbon (1) * Driver Badge Wheel * Army Commendation Medal * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * National Defense Service Medal m. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation, an individual 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. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 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 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 warranted. Based upon the lengthy period of honorable service completed prior to any misconduct, as well as the good character evidence submitted on behalf of the applicant showing he has learned and grown from the events leading to his separation, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. Prior to closing the case, the Board noted that the applicant had a prior period of honorable service which was not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). Additionally, a review of the applicant’s records shows his DD Form 214 omitted administrative entries in the Remarks block. As a result, amend the DD Form 214 by adding in item 18 the entry “Continuous honorable service 19780215- 19810319.” 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, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned 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 3-7b (General Discharge) states 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. c. Chapter 10 of this regulation states an individual 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. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20170004252 5 1