ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 August 2019 DOCKET NUMBER: AR20170006463 APPLICANT REQUESTS: to upgrade his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the review of Discharge). 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 is requesting an upgrade for medical care. He believes that taking away his health care would be like sentencing him to death. He states when he was young, he always wanted to wear the uniform of a Soldier. He wanted to be proud to walk down the street in uniform, but when he did he found his country hated him and his uniform. At that point he couldn’t wait to get out of the uniform. He was young and ignorant and could not see in the future if he had the proper foresight back then he would have made a career in the military. He is now older, he’s loss a daughter during his time in the military and he wasn’t thinking like an adult. 3. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 11 June 1974. He served in Hawaii from 29 November 1974 to 23 December 1974. b. On 20 June 1975, he accepted nonjudicial punishment (NJP) under Article 15 for absenting himself from his organization on 1 May 1975 to 2 June 1975 and 9 June 1975 to 18 June 1975. c. On 18 September 1975, court-martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) shows he was charged with one specification of wrongfully having in his possession an undetermined amount of marijuana on 8 September 1975 c. On 9 October 1975, the applicant consulted with counsel who advised him of the contemplated trial by a court-martial and of the rights that were available to him. Following this consult, the applicant requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). The applicant stated prior to completing the form he had been afforded the opportunity to consult with legal counsel. In his request, he acknowledged: * he was advised of the basis for the contemplated separation action under provisions of chapter 10, AR 635-200 * he was advised if his request for discharge was accepted he may be discharged under other than honorable conditions and furnished an undesirable discharge certificate * he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA) and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he was advised that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge * he was advised once the request was submitted, it may be withdrawn only as provided in paragraph 10-4, AR 635-200 * he elected not to submit a statement on his own behalf d. On 16 October 1975, additional court-martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) shows he was charged with the following: * one specification on of wrongfully having in his possession an undetermined amount of marijuana on 30 September 1975 * one specification of unlawfully having in his possession a helmet combat vehicle crew member, an M-17 protective mask with hood, and a sixteen piece set of billiard balls property of the US Government; and one pair of pants, one shirt and one jacket, property which he knew had been stolen e. On 20 November 1975, additional court-martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit on 21 October 1975 until 11 November 1975: f. On 4 December 1975, the applicants commander recommended approval of the separation action and he recommend an undesirable discharge be issued. g. On 4 December 1975, the United States District Court in Wichita, Kansas sent a certified copies of U.S. District Court Order 75-175-CR6 to the applicant’s commander committing the applicant to the custody of the United States Attorney General for treatment and training after the disposition of the pending military charges pursuant to a previous court conviction on 2 December 1975, mentioned in the commander’s recommendation for separation. h. On 5 December 1975, the chain of command recommended approval and issuance of an undesirable discharge certificate. i. On 17 December 1975, the separation authority approved the applicant's request for discharge and ordered his service be characterized as under other than honorable conditions and he be issued an Undesirable Discharge Certificate (DD Form 258A). j On 18 December 1975, the applicant was discharged from active duty. His DD Form 214 (Report of Separation from Active Duty), shows he was discharged under the provisions of AR 635-200 chapter 10 in the rank of private/E-1 with and under other than honorable conditions characterization of service. He completed 1 year, 3 months, and 23 days of active service and 75 days of lost time. It also shows he was awarded or authorized the National Defense Service Medal. k. There is no evidence the applicant has applied to the Army Discharge Review Board for review of her discharge within that board's 15-year statute of limitations. 4. By regulation, discharges under the provision of AR 635-200, chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court-martial. The issuance of a discharge under the provisions of chapter 10, AR 635-200 required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by a court-martial. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to a pattern of misconduct, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX XX XX 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, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 states that a Soldier who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170006463 5 1