ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20170004955 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Military Personnel Records * Two United States (U.S.) Army Legal Service Agency, United States Army Court of Criminal Appeals Letters * U.S. Army Criminal Investigation Command, U.S. Army Crime Records Center Letter 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: a. He was informed that he was court-martialed and that is the reason for his discharge being other than honorable. He received three article 15’s in a very short time after arriving to Germany. He was an ammunition specialist and he was picked on to do things outside of his career field. He questioned them, and was told, to do as I say, not as I do. Whenever a lousy detail came up he was the first one that was picked on. In September 1979, SGT X kept nudging him and saying what are you doing Dykes? Finally, he had enough of him nudging and taunting him, so he responded angrily. SGT X reported him to the first sergeants for disrespect and he received an article 15, dated 18 September 1979. 3. The applicant provided: a. The self-authored statement which states, he agreed that he responded inappropriately, but it was only after being antagonized to the point of rage. He wrote a statement to lieutenant colonel X----- to explain what happened, but it was never made a part of the official record. b. In addition, he sent his complete military personnel as it was given to him from archives St. Louis, and you can clearly see that he provided the statement, but there is no transcript of it in the official record. He received an article 15 for being late, but thought it was revenge for previously been yelled at and demeaned, he had never been late before and he prides himself on being on time. He felt that the punishment was too harsh. When he consulted with the defense counsel he was told that there was nothing that he could do, and that taking the punishment would be the easiest thing to do. He was young and had no idea how the uniform code of military justice (UCMJ) worked and relied on those in authority to help him. He felt defeated and the efforts by those in charge of him to get him to break increased. He endured months of being yelled at for no reason, and attempted to avoid the noncommissioned officers in charge to stay out of trouble. They knew that he did not like to be yelled at and they took advantage of it. He knew that he was being set up so he reported to the first sergeant’s office but the battalion commander was there, and the battalion commander saw that the applicant was mad then he was not allowed silverware, by order of the battalion commander. After this encounter he received a court-martial, and sentenced to confinement. Near the end of his confinement and knowing that it would be hard to overcome it and considering the treatment he endured he asked to separate from the military. Later, he was given his discharge, he had no idea at 20 years old that an other than honorable discharge would have such an impact on his life. c. He petitioned for a copy of his court-martial, and there is no record. He is including a copy of the lack of records showing that he was never court-martialed. Given the fact that he was incarcerated for a court-martial and there is no record and the mental and physical anguish endured, he is asking to have his discharge upgraded to a general discharge. d. He has been an outstanding member of his community. He went to school for security and have safeguarded people and property, supervised up to 30 people in support of his duties. He has worked for a rehabilitative center where he ensured the safety of people undergoing difficult transitions in their lives. He is in pain due to his time in service and is unable to receive medical benefits because of the character of service. He is asking that reasonable consideration be given due to the lack of proof that a court-martial ever occurred and he was incarcerated unjustly, and separated wrongly. e. On 6 December 2016, the Army Legal Service Agency, Army Court of Criminal Appeals by letter to the applicant acknowledged receipt of his freedom of information privacy act request for documents pertaining to his court-martial. They informed him that they had no record of the court-martial in their system. They forward the request to the Army Crime Records Center, Quantico, VA on 6 December 2016. f. The Army Crime Records Center, Quantico, VA by letter on 21 December 2016 to the applicant states that a search of the Army criminal file indexes utilizing the information you provided revealed no files pertaining to the applicant. 4. A review of his service record shows: a. He enlisted in the Regular Army on 14 February 1979. b. He accepted nonjudicial punishment (NJP) on: * 21 September 1979 for assault of a superior noncommissioned officer * 19 December 1979, he failed to be at the appointed place of duty * 22 April 1980, disrespectful toward a superior noncommissioned officer, his punishment restriction for 30 days and forfeiture of $150.00 for one month, (suspended until 1 September 1980) * 12 June 1980, the suspension of the punishment of forfeiture of $150.00 for one month suspended until 1 September 1980, imposed on 22 April 1980 was vacated. c. DA Form 2496 (Disposition Form), dated 10 October 1980, requested deferment to confinement be rescinded effective 10 October 1980 based upon willingly disobeying a lawful order on 9 October 1980. d. The deferment of his sentence to confinement at hard labor deferred on 3 October 1980 was rescinded due to misconduct. e. On 15 October 1980, the applicant's immediate commander initiated discharge proceedings under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-33b (1), for a pattern of misconduct of frequent acts of a discreditable nature. The commander requested waiver of further counseling and rehabilitative transfer in the case of the applicant. f. On 22 October 1980, he received a medical examination and a mental evaluation for separation under AR 635-200, chapter 14 which stated that he had the mental capacity to understand and participate in the chapter proceedings. g. On 27 October 1980, he waived consulting with legal counsel on the contemplated action to separate him for frequent acts of a discreditable nature under the provision of chapter 14, AR 635-200. He acknowledged: • he may submit a statement in his own behalf, he elected not to submit a statement • the rights available to him and the effect of waiving said rights • he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him • he would be ineligible to apply for enlistment in the united states army for a period of two years after discharge h. Consistent with the chain of command’s recommendations, the separation authority approved the request for discharge under the provisions of AR 635-200, paragraph 14-33b(1) for a pattern of misconduct of frequent acts of a discreditable nature and directed that he receive an under other than honorable condition discharge certificate. i. The applicant was discharged from active duty on 31 October 1980 under the provisions of AR 635-200, paragraph 14-33b (1) for a pattern of misconduct for frequent involvement in incidents of a discreditable nature with civil or military authorities. His service characterization is under other than honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 7 months, and 13 days of active service this period. Lost time 12 September to 2 October 1980 and 10 through 23 October 1980. 5. The Army Discharge Review Board, by letter, on 21 May 1984, to applicant after careful consideration of his military records and all other available evidence, determined that he was properly and equitably discharged and denied his request. 6. By regulation, 635-200, chapter 14 establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct. 7. In reaching its determination, the Board can consider the applicants 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 not warranted. Based upon the relatively short term of service completed prior to a pattern of misconduct beginning, as well as some of that misconduct involving violent behavior against 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. 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 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 1-9d (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. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. Paragraph 1-9e (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. When a member’s service is characterized as general, except when discharged because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Chapter 14-33b (1) states Soldiers are subject to separation for a patterns of misconduct when frequent incidents of discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, or an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents. 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-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. ABCMR Record of Proceedings (cont) AR20170004955 5 1