ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 May 2019 DOCKET NUMBER: AR20170008574 APPLICANT REQUESTS: * upgrade of discharge from under other than honorable conditions to honorable * change reason for discharge to convenience of the government * appropriately change the reenlistment (RE) code to RE-1 * appropriately change the separation program designator code (SPD) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attachments A and B to the applicant’s DD Form 149 * DA Form 2627 (Record of Proceedings Under Article 15, UCMJ, dated 1 July 1975 * Special Orders Number 70, dated 9 April 1976 * Applicant’s DD Form 214, dated 13 April 1976 * Letter of release/authorization for submission of DD Form 214 for Mr. X (formerly known as Mr. X), dated 31 July 2015 * Commonwealth of Massachusetts, The Trial Court, Probate and Family Court Department Change of Name(s) document (on behalf of Mr. X), dated 4 April 2014 * DD Form 214N (Mr. X’s (formerly Mr. X) Record of Separation from Active Duty, dated 9 January 1976 * Massachusetts Department of Correction Health Services, Physician’s Order Forms (3 pages, various dates) 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, in effect, he noticed discrepancies between the documents he received for nonjudicial punishment under the provisions of Article 15 and those related to his separation. 3. The applicant provided: a. Attachment A, provides additional information for block 9 of his DD Form 149. The applicant details discrepancies he noticed on his DD Form 214. b. Attachment B, provides a list of documents submitted for block 10 of his DD Form 149. c. DA Form 2627, claiming there was no indication of a discharge listed as part of his agreed upon nonjudicial punishment under the provisions of Article 15. He did not appeal the punishment listed in Block 7 of his DA Form 2627, but if the punishment of discharge had been included, he would have appealed the findings. d. Special Orders Number 70, showing his rank as private/E-1 “PV1”, explaining there is no indication of a pay grade reduction to PV1 as listed on this order compared to the rank of private(PV2/E-2) as listed in the Record of Proceedings under Article 15, UCMJ (DA Form 2627). e. DD Form 214, dated 13 April 1976, the applicant addressed the following discrepancies: (1) Item 21 (Time Lost), the applicant states Item 1 of Part I (Initial Action) of his DA Form 2627 states referenced the dates he was reported to have been absent from his place of duty without authority was for two days (29 to 30 June 1975), but the two days are not listed as lost time on his DD Form 214. (2) Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized), fails to include the National Defense Service Medal which he states was authorized at that time and is still awarded automatically to all persons upon entry into the Armed Forces of the United States. (3) Item 27 (Remarks), the applicant further states additional hand-written information was added after the document was signed by him and the Assistant Adjutant General. f. The following documents were provided from an assumed friend or witness on behalf of the applicant: * Letter of release/authorization from Mr. X, the Commonwealth of Massachusetts, The Trial Court, Probate and Family Court Department Change of Name(s) document (on behalf of Mr. X), which changed Mr. X’s name to Mr. X * Mr. X’s (was Mr. X at time of separation) DD Form 214N (Record of Separation from Active Duty) g. Massachusetts Department of Correction Health Services, Physician’s Order Forms, references a period of medical care and prescriptions provided to the applicant several years after his military service (3 pages, various dates). 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 20 January 1975. He attained the rank of private first class/E-3. b. On 1 July 1975, he accepted nonjudicial punishment under the provisions of Article 15 for being absent from his unit area without authority from 29 June to 30 June 1975. The punishment given, did not include a rank reduction. c. On 12 November 1975, the applicant was required to complete a DA Form 2823 (Sworn Statement) and DA Form 3881 (Rights Warning Procedure/Waiver Certificate) in support of a Criminal Investigation Division (CID) investigation regarding the wrongful destruction of private property. The property referenced was a car located within the company area adjacent to the applicant’s house. Within the applicant’s sworn statement, he stated, while on guard duty the night of 11 November 1975, he discovered a fellow Soldier’s car had been damaged. The applicant explains he attempted to notify the owner, but was unsuccessful until the next morning. d. He was required to complete additional DA Form 3881 on 1 December 1975 and 7 January 1976, and another DA Form 2823 on 7 January 1976. Within the sworn statement provided, he admitted that he provided a dishonest statement on 12 November 1975. He admitted to damaging the fellow Soldier’s car. He stated he had an argument with the Soldier earlier the day of the incident and was also upset about being on guard duty. He mentioned he saw the fellow Soldier’s car while in the performance of his duties and simply starting wrecking it. He provided the full extent of the damage he caused to the car in the attached sworn statement and further stated that he did not know why he did the damage and was sorry for what happened. e. CID Final report, provided on DA Form 2800, dated 23 January 1976, references all sworn statements provided by the applicant and the owner of the car, along with a listing of photos taken of the damage. The report disclosed the applicant wrongfully destroyed the fellow Soldier’s privately owned vehicle causing loss and damages totaling approximately $824.00. f. On 29 January 1976, the applicant was issued a DA Form 268 (Report for Suspension of Favorable Personnel Actions) by his immediate commander. Block 17 (Synopsis of Available Information) states the service member is being processed for elimination under Chapter 13, AR 635-200. g. On 18 February 1976, the applicant was issued a DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate) for unsatisfactory conduct and unsatisfactory efficiency by his immediate commander. In Section II (Individual’s Review) of this document, the applicant initialed and signed confirming: * receipt of his commanding officer’s recommendation to bar him from further enlistment/reenlistment * he had been counseled regarding the basis for this type of action * did not desire to submit a statement on his behalf (1) Block 10 (Record of Non-Judicial Punishment) references the applicant’s nonjudicial punishment issued on 1 July 1975. (2) Block 12 (Other Factual and Relevant Indicators of Untrainability or Unsuitability) references the applicant could not train for a job, was apathetic, and disinterested. The applicant’s commander also provided in the block, the applicant had a failure to manage personal affairs and had a habitual substandard duty performance. A record of his counseling sessions are also listed in this block. h. Special Orders Number 68, dated 7 April 1976, issued by Headquarters, Fort Devens, MA, reduced the applicant in rank from private first class/E-3 to private/E-1 effective 6 April 1976. i. The complete facts and circumstances surrounding his discharge are not available for review. His service record contains a DD Form 214 that shows the applicant was discharged on 13 April 1976 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (in lieu of trial by court-martial), with an under other than honorable conditions discharge. He completed 1 year, 2 months, and 24 days of active service. His DD Form 214 shows in: * Item 9c (Authority and Reason) no authority and reason listed * Item 25 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) list “None” * Item 27 (Remarks) shows Chapter 10, AR 635-200, with a SPD code of JFS, and a Reenlistment Code of RE-3. 5. By regulation, a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, may submit a request for discharge 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. A discharge under other than honorable conditions is normally considered appropriate. 6. By regulation, the SPD code JFS is the appropriate code to assign to Soldiers who are separated due to an administrative discharge for conduct triable by court-martial under the provisions of AR 635-200, chapter 10. The RE code associated with the type of SPD code is RE-3. An RE code 3 applies to persons who are not qualified for reentry or continuous service at the time of separation, but the disqualification is waivable. 7. By regulation, the National Defense Service Medal is awarded for honorable active service for any period between 1 January 1961 and 14 August 1974 (beginning and ending dates inclusive). The applicant's service was from 20 January 1975 to 13 April 1976, which was not within an eligible period of service to receive this award. 8. The Board should consider the applicant’s submissions 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 pattern of misconduct within the record, 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 agreed that the applicant's discharge characterization, reason for separation, separation and reentry codes were warranted. 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. 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. AR 635-200, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 3-7b provides 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 the 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. AR 601-210 (Active and Reserve Components Enlistment Program), table 3-1, governs eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. * An RE code 1 applies to persons who completed an initial term of active service who were fully qualified for enlistment when separated. * An RE code 3 applies to persons who are not qualified for reentry or continuous service at the time of separation, but the disqualification is waivable. * An RE code 4 applies to persons separated from their last period of service with a non-waivable disqualification. 4. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code JFS is the appropriate code to assign to Soldiers separated due to administrative discharge for conduct triable by court-martial under the provisions of AR 635-200, chapter 10. 5. The SPD/RE Code Cross Reference Table, in effect at the time of his discharge, stipulated that an RE-3 code would be assigned to members separated under these provisions with an SPD code of JFS. 6. AR 672-5-1 (Decorations, Awards, and Honors, Military Awards), paragraph 4-26, in effect at the time, provides, the National Defense Service Medal was awarded for honorable active service for any period between 27 June 1950 and 27 July 1954 and 1 January 1961 and 14 August 1974 (beginning and ending dates inclusive). 7. 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) AR20170008574 6 1