ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 June 2019 DOCKET NUMBER: AR20170007898 APPLICANT REQUESTS: in effect, reconsideration of his previous request for an upgrade of his other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character Letters (4) 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 AR20150017150 on 6 April 2017. 2. The applicant states his brother was awaiting a bone marrow transplant in Memphis and all of his family members were asked to come in to be tested. The Red Cross sent for him to go to Memphis and be tested. His sergeant did not want him to go and would not sign for him to go until the Red Cross intervened. When he returned to the field other sergeants harassed him and sent him to the stockade at Fort Hood and Fort Riley. His sergeant at Fort Riley gave him a choice between going back through basic training or taking an other than honorable discharge. He chose the discharge because he did not want to go back through basic training. The sergeant at Fort Riley did not give him the opportunity to go before the court and state his case. He was young and did not know he had that option. He thought the sergeant had the last word. Since being discharged, he has been a model citizen with no record except one DUI. He is a hard worker and has worked continuously since 1981. He has never had a problem in any job. He would like his discharge to reflect his character. 3. The applicant provides four character letters stating that: a. T. F. has known him for 23 years and has nothing negative to say about the applicant. He knows him to be a responsible man that is very humble, respectful, a family man, and a law abiding citizen. He takes care of his responsibilities. b. B. M. has been his supervisor for more than seven years. He states that the applicant is a responsible, trustworthy, and dependable employee who is capable of working with a group of people and getting his work done. He depends highly on the applicant. c. T. J. is his step-daughter. She states the applicant is an outstanding man. He accepted and loved five children that were not his without knowing them and from the start of his relationship. d. V. J. is his niece and has known him for 40 years. The applicant is hardworking and has goodwill towards other. He knows what it means to do an honest day’s work. She has seen him exhibit a caring, non-prejudicial demeanor. He is a father figure to many children. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 16 April 1980. b. He accepted nonjudicial punishment on/for: * 12 June 1981 for dereliction of duty; a portion of his punishment included reduction to private (PVT)/E-1 * 12 October 1981 for being disrespectful language to a noncommissioned officer c. He was convicted by summary court-martial on 23 September 1981 for two specifications of willfully disobeying an order from a noncommissioned officer and one specification of dereliction of duty. The sentence was approved and duly executed. d. On 3 November 1981, his immediate commander notified him of his intention to initiate separation under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-33b (Other Misconduct). He acknowledged receipt on 3 November 1981. e. After consulting with legal counsel, he acknowledged: * Maximum punishment * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued * he may be ineligible for many or all benefits as a veteran under both Federal and State laws as a result of issuance of a discharge under other than honorable conditions * he elected not to submit a statement on his own behalf f. On 9 November 1981, consistent with the chain of command recommendations, the separation approval authority approved the discharge under the provisions of AR 635-200, chapter 14-33b. He would be issued an Under Other than Honorable Discharge Certificate. g. On 13 November 1981, he was discharged from active duty. His DD form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 14-33b of AR 635-200 with an under other than honorable conditions characterization of service. He completed 1 year, 6 months, and 5 days of active duty. It also shows he was awarded or authorized: * Marksmanship Qualification Badge with Rifle Bar * Marksmanship Qualification Badge with Grenade Bar h. On 6 April 2017, the ABCMR denied his application for an upgrade of his under other than honorable conditions characterization of service. 5. By regulation, this chapter establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, and other acts or patterns of misconduct. 6. 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 and letters of support 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 evidence of post-service achievements for the Board to consider. Based upon the 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 : 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 to amend the decision of the ABCMR set forth in Docket Number AR20150017150 on 6 April 2017. 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. 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. 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. c. Chapter 14-33b (Patterns of Misconduct) states a pattern of misconduct is construed as 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, and/or an established pattern shoeing 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 the 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, 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 upgrade service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170007898 2 1