ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20170005510 APPLICANT REQUESTS: * upgrade of his under other than honorable discharge to an honorable discharge * reinstate his rank to staff sergeant, SSG/E-6 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Online DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 has accepted his wrong doing while in service and has lived with the pain and guilt since that day. He has been without any wrong doing since the discharge and has been a productive citizen since. He is asking the Board to accept his apology and he requests a second chance. He is 59 years old and wants to come to terms with this final request from the Army and country. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 4 April 1973 for a period of 3 years. b. His DD Form 214 (Report of Separation from Active Duty) shows he received an honorable discharge on 28 March 1979, in order to immediately reenlist, completing 2 years, 10 months and 4 days of active service during this period. c. On 29 March 1979, he immediately reenlisted for 4 years and on 29 December 1982, he reenlisted for 6 years. d. His DA Form 2-1 (Personnel Qualification Record) (PQR) shows he was promoted to staff sergeant (SSG)/E-6 effective 19 November 1982. Block 27 (Remarks) shows his PQR was submitted to the U.S. Army Recruiting Command (USAREC) on 15 July 1986 for the E-7 promotion selection board. His record is void of documentation of a promotion to sergeant first class (SFC)/E-7. However, block 18 (Appointments and Reductions) shows he was reduced in rank from SSG/E-6 to private (PVT)/E-1 effective on 24 February 1987. e. Court-martial charges were preferred against the applicant on 19 February 1987. His DD Form 458 (Charge Sheet) shows he was charged with violation of: * Larceny and Wrongful Appropriation stealing $150.00 in United States currency, property of Private First Class (PFC) X___ on or about 30 January 1987 * Larceny and Wrongful Appropriation stealing $110.00 in United States currency, property of PFC X___ on or about 30 January 1987. Jurisdiction attaches to the military because the automatic teller machine card used to facilitate the theft was the property of a service member and originally stolen on the Fort Bragg reservation by the said SSG X___ * Wrongfully steal certain mail matter, two letters, addressed to PFC X___ Bu___ which were on the applicant’s desk before said letters were delivered to PFC X___. f. He consulted with his legal counsel on 19 February 1987 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * the maximum punishment if found guilty * if his request was accepted, he may be discharged under other than honorable and furnished an Under Other Than Honorable Discharge Certificate * if approved, he would be deprived of many or all Army benefits * he may ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State law * He may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge g. Consistent with the chain of command’s recommendation, on 24 February 1987, the separation authority approved the applicant’s request for discharge for the good of the service with an under other than honorable conditions discharge. He would be reduced to the lowest enlisted pay grade. h. Orders 32-83, published on 24 February 1987, show the applicant was reduced in rank from staff sergeant (SSG)/E-6 to private (PVT)/E-1 effective on 24 February 1987. 4. On 3 March 1987, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, with an under than honorable conditions characterization of service. He had immediate reenlistment 25 May 1976 to 28 March 1979, and 29 March 1979 to 28 December 1982. He completed 7 years, 11 months, 3 days of active service during the period. He is awarded or authorized: * Army Commendation Medal (3rd award) * Army Achievement Medal (3rd award) * Good Conduct Medal (3rd award) * Army Service Ribbon * Army Overseas Service Ribbon * Non-Commissioned Officer Professional Development Ribbon * Expert Infantryman Badge * Master Parachutist Badge * Rifle M-16 Marksman Qualification Badge 5. The Army Discharge Review Board reviewed his discharge on 17 May 1994. The board found it proper and equitable, and denied his request for an upgrade. 6. By regulation, AR 635-200, 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 Under Other Than Honorable Conditions Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 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 that partial relief was warranted. Based upon the applicant being an NCO and his misconduct involves theft of property from junior Soldiers, the Board concluded that the characterization of service received at the time of separation was appropriate. However, the Board did note that the applicant had a period of prior honorable service which was not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 29 March 1979 until 3 March 1987.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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), sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member'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. A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for security reasons, or for the good of the service d. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. e. 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and ABCMRs 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, ABCMRs 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) AR20170005510 5 1