ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 August 2019 DOCKET NUMBER: AR20170004411 APPLICANT REQUESTS: * upgrade his other than honorable conditions discharge to honorable * gain specialist/ E-4 status back * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 was discharged from the Army without any advanced notice and he didn’t have any advice from counsel. He was very young at this time and didn’t know his rights. He stated he request an upgrade of his discharge and to regain his E-4 status. He stated he would like a chance to plead his case. He states it’s been 34 years and he still hasn’t been able to deal with the fact of not having an honorable discharge. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 17 October 1979. b. According to the applicants DA Form 2-2, he was convicted by a summary court- martial on 28 October 1980 for one specification of failure to report on 16 September 1980 and one specification of disobeying a lawful order on 16 September 1980. The court sentenced him to reduction to E-1, forfeiture of $250, and confine to hard labor for 30 days. The convening authority approved the sentence on 30 October 1980. The record is void of the actual court-martial order. a. c. On 14 November 1980, the unexecuted portion of the approved sentence to confinement hard labor for 30 days was suspended until 18 March 1981 , at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action. The record is void of the actual court-martial order. d. On 24 August 1981, he accepted nonjudical punishment for disrespect to a noncommissioned officer. The record is void of the DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ). e. On 6 January 1983, he was convicted in civil court for hindering apprehension and give five months confinement in the Bell County jail. f. On 20 January 1983, the applicant's immediate commander advised him of his intent to initiate separation action against him under the provisions of paragraph 14-5, chapter 14, Army Regulation (AR) 635-200. g. On 20 January 1983, the applicant acknowledged notification of the proposed separation action and subsequently consulted with legal counsel. He acknowledged: * he waived consideration of his case by a board of officers * he declined to submit statement in his own behalf * he had been advised of the basis for the contemplated separation action under the provisions of chapter 14 of AR 635-200 * he had been advised of the effect on future enlistments in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him * he may apply to the Army Discharge Review Board or the ABCMR for a review of his characterization of service; however, the act of consideration does not imply an upgrade of his discharge * he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life h. On 27 January 1983, the applicant's immediate commander requested that the applicant be discharged from the service prior to his normal expiration date of service under the provisions of Army Regulation (AR) 635-200, (Personnel Separations- Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), paragraph 20a, conviction by civil court. He recommended an undesirable discharge. i. On 22 February 1983, consistent with the chain of command recommendations the separation authority approved the request for discharge and directed he be issued an under other than honorable conditions discharge certificate and reduced to Private/E-1. a. j. On 8 March the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14 of AR 635-200, due to civilian conviction. He completed 2 years, 11 months and 22 days of net active service this period. He had 154 days of lost time. It also shows he was awarded or authorized the Army Service Ribbon and Expert Marksmanship Badge (Rifle). k. The Army Discharge Review Board (ADRB), by letter, on 8 August 1984, to the applicant informed him that after careful consideration of his military records and all other available evidence the Board denied his request 4. By regulation, action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is appropriate for a member discharged under AR 635-200, Chapter 14. 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 reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined it could reach a fair and equitable finding in the case without a personal appearance by the applicant. The Board considered the applicant's statement, the short term of honorable service completed prior to a pattern of misconduct, the frequency and nature of his misconduct, his civil conviction, the reason for his separation and whether to apply clemency. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board concluded that the character of service received at the time of discharge and the applicant's reduction to E1 as a result of the UOTHC discharge was not in error or unjust. 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. 9/9/2019 X CHAIRPERSON Signed by: 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. 1. a. Item 3a shows the rank/grade in which a member was serving at the time of separation with an indication of permanent or temporary; for example, "MSG (T) [master sergeant, temporary], SP4 (P), etc." b. Item 3b shows the date of rank for the grade shown in item 3a. If the date of rank is different from the date of appointment, enter the date of appointment in item 32 (Remarks). If the grade at the time of separation is not permanent, the permanent grade, date of appointment, and date of rank, if different from date of appointment will be entered in item 32. 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.