ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20170008392 APPLICANT REQUESTS: upgrade of his under other than honorable condition discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * 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 was discharged from the Army because a young man was accidently shot in the foot. He admits ownership of the legally purchased weapon. He was attempting to show the weapon to another person when it discharged striking the gentleman in the foot. He doesn’t understand why the military pursued the action against him even though the victim chose not to testify or press charges against him. The applicant said it was an accident. He was afraid of what he would face at a court- martial; so, he chose to follow the military counsel’s recommendation to take a plea and be discharged in lieu of trial by court-martial. He knows how foolish it was to accept that type of discharge and is requesting it be changed to general. At the time of the incident, he was only twenty-six years old and not mature enough to understand the impact it had on his career. Now that he is in his late 40s, he thinks more clearly and wants his record expunged. 3. The applicant’s service records shows: a. He enlisted in the Regular Army on 1 July 1986. b. He reenlisted on 18 October 1989 for the Regular Army Reenlistment Option. a. c. He served in Germany from 28 November 1989 to 28 July 1992. He received credit for a normal tour completion. d. He accepted nonjudicial punishment (NJP) under Article 15 on 21 July 1993 for disorderly conduct. His punishment included reduction to private first class (PFC)/E-3 (suspended for 90 days). e. He accepted NJP on 1 December 1993, for failure to go at the time prescribed to his appointed place of duty on 1st, 3rd and 17th of November 1993 . His punishment included reduction to private first class (PFC)/E-3 (suspended for until 30 May 1994). f. Court-martial charges were preferred on the applicant on 4 April 1994. His DD Form 458 (Charge Sheet) indicates he was charged with: * two specifications of assault with a dangerous weapon (loaded firearm) * one specification of unlawful carry on or about his person a concealed weapon (handgun) * one specification of wrongfully and willfully discharge a firearm (handgun) g. He consulted with legal counsel on 10 May 1994 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * maximum punishment * he was guilty of the charge against him or of a lesser included offense * he understood if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an Other Than Honorable Discharge Certificate * he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the Veterans Administration and benefits of a Veteran under Federal and State law * he was advised he could submit any statements he desired in his own behalf * his election shows he elected not to submit a statement h. On 19 May 1994, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial. The separation authority directed issuance of an Under Other Than Honorable Discharge Certificate and reduction to the lowest enlisted grade. i. On 10 June 1994, 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 other than honorable a. conditions discharge. He completed 7 years, 11 months, and 10 days of active service. It also shows he was awarded or authorized: * Army Achievement Medal * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Driver and Mechanic Badge (Mechanic) 4. By regulation, a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the serious and criminal nature of the misconduct which led to the applicant’s separation, 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. 6/17/2019 X CHAIRPERSON Signed by: 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service general 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 3-7b (General Discharge) states that 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 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, submit a request for discharge for the good of the service in lieu of trial by court martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Although an honorable or general discharge is authorized, 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 (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 1. 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.