ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 October 2019 DOCKET NUMBER: AR20170010225 APPLICANT REQUESTS: an upgrade of his under other than honorable discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 (ABCMR) 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 that he was accused of a crime that he did not commit. The crime that he was accused of was breaking into an elementary school. He believes his discharge was improper because when the incident occurred he was in the field and strongly feels that he was misinformed about the conditions of his discharge. He does not believe he received a fair hearing regarding his benefits since he was never convicted of a crime. He was told by his military lawyer to sign a paper which would allow him to avoid five years in Ft. Leavenworth KS. The document also stated that he would receive an under other than honorable discharge. He was unaware at the time that he was a free man but his lawyer knew this. During his discussion with his lawyer, another person entered the room and stated it was general orders and that they had 72 hours to release him and get him out of Germany. He was held in custody from February 1982 to May 1982. When he was released, all of his benefits were taken from him . Because of this, he has suffered in certain areas of his life. He understands now that he should not have signed the form. He thought the lawyer had his best interest in mind. He was innocent. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army (RA) on 27 February 1979. b. He served in Germany from 22 August 1979 to 25 February 1982. c. He accepted nonjudicial punishment (NJP) on 24 November 1981 for stealing a leather jacket with a value of about $100, property of the post exchange. His punishment included reduction in rank to private first class/E-3. d. The applicant consulted with legal counsel on 3 May 1982 and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him/her. Following consultation with legal counsel, he requested discharge for the in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Enlisted Personnel), chapter 10 in lieu of trial by court-martial in his request for discharge, he acknowledged: * this request was being made of his own free will * he was afforded the opportunity to consult with appointed counsel * if accepted, his discharged may be under other than honorable conditions * no statements on his behalf are submitted * understood that if his request for discharge is accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate * understood that as a result of the issuance of an Under Other Than Honorable Discharge he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of my rights and benefits as a veteran under both Federal and State law * understood that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge e. On 11 May 1982, his immediate commander recommended approval of the request for discharge under the provisions of AR 635-200, chapter 10 in lieu of trial by court-martial. f. On 13 May 1982, his intermediate commander recommended approval of the request for discharge under the provisions of AR 635-200, chapter 10 in lieu of trial by court-martial. g. On 24 May 1982, the separation authority approved the separation under AR 635-200, in lieu of trial by court-martial with reduction to the lowest enlisted grade and an under other than honorable discharge. h. He was discharged from active duty on 28 May 1982. 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 in lieu of trial by court-martial. He completed 3 years, 2 months, and 28 days of active duty service with 4 days of lost time. His character of service reflects under other than honorable conditions. 4. AR 635-200, chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 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 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 serious misconduct, an offense of a criminal nature, the admission of guilt within the administrative separation request and now the statement of the applicant stating he didn’t commit the crime, the Board found a failure of the applicant to learn and grow from the events leading to the separation. Therefore, 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 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 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 (Enlisted Personnel) in effect at the time, provides for the separation of enlisted personnel. a. 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. 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 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 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) AR20170010225 3 1