ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20170005684 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable characterization of service to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veterans Affairs (VA) Denial Letter * VA Decision Memorandum 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 AC82-03370A on15 August 1982. 2. The applicant states, the he was treated unfairly due to racial biases while serving on active duty. He states there were no fair promotions or considerations as with other races. He mentions that he suffered marital problems while stationed in Germany. Other service members had their discharges upgraded by law, even for absent without leave (AWOL) incidents. He feels he was discriminated against due to his race. 3. The applicant provides: a. VA Denial Letter, dated 19 July 2007, which states that he is barred from receiving VA benefits, other than medical care due to his character of service when discharged from the Army. b. VA Decision Memorandum, dated 8 July 1980, which states the applicant's discharge is considered to have been issued under dishonorable conditions and is a bar to VA benefits. The applicant is entitled to health care benefits for any disabilities determined to be service-connected. 4. A review of his service records shows: a. He enlisted on 29 July 1976 in to the Regular Army (RA). b. His DA Form 2-1 (Personnel Qualification Record) shows he was stationed in Germany from 16 April 1978 to 27 July 1980. It also shows he was reported AWOL for a period of 4 days, from 1 July 1977 to 5 July 1977. c. On 2 August 1977, the applicant accepted nonjudicial punishment (NJP) for one count of AWOL and one count of disobeying a lawful order. His punishment consisted, in part, of reduction to private (PVT)/E-1. d. His DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 5 October 1979 indicates that he was reported AWOL for a period of 22 days from 24 September 1979 to 16 October 1979. e. Court-martial charges were preferred against him for violating the Uniform Code of Military Justice (UCMJ) but his DD Form 458 (Charge Sheet) is not available for review with this case. f. He consulted with legal counsel on 5 December 1979 and was advised of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, the significance of his suspended sentence to a bad conduct or dishonorable discharge; of the possible effects of an under other than honorable condition discharge, of this request is approved; and of the procedures and rights available to him. Following consultation, he 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: * if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other than Honorable Discharge Certificate * if his request was accepted he would be deprived of many or all Army benefits * he may be 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 11 December 1979, the separation authority approved the applicant’s request for discharge for the good of the service on 21 December 1979 with an under other than honorable conditions discharge with the rank/grade of PVT/E-1. h. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that on 8 January 1980, he was discharged from active duty under the provisions of AR 635-200, Chapter 10 with an under other than honorable conditions characterization of service. He had 3 years, 4 months and 24 days of active duty service. He had 26 days of lost time from 1 July 1977 to 5 July 1977 and from 24 September 1979 to 16 October 1979. He was awarded or authorized: * Marksman Marksmanship Badge with Rifle Bar (M16) * Expert Marksmanship Badge with Hand Grenade Bar 5. The applicant applied to the Army Discharge Review Board on 15 April 1981, for an upgrade of his characterization of service, and was denied on 15 March 1982. 6. The applicant applied to the Army Board for Correction of Military Records on 15 August 1982, for an upgrade of his characterization of service, and was denied on 17 September 1982. 7. By regulation (AR 635-200), Chapter 10, 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 will normally be furnished an individual who is discharged for the good of the service. Paragraph 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor 8. 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 not warranted. Based upon the short term of service completed prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, 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. Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member'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. b. Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 (Discharge for the Good of the Service) 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 under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the Service. However, the separation authority may direct a General Discharge Certificate, if such is merited by the member'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-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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20170005684 5 1