ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20170011374 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions 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) * VA Form 21-4138 (Statement in Support of Claim) * Request for Administrative Correction from Board for Correction of Naval Records * Letter to Army Review Board Agency with additional documentation * Self-authored letter of explanation * Letter of Support by LTC (Retired) DSS, dated 25 June 2017 * Father’s Obituary * Letter of Appreciation with endorsements, dated 14 May 1980 * Letter of Appreciation, date 21 August 1980 * Letter of Appreciation, dated 19 November 1980 * Certificate of Appreciation, dated 14 May 1980 * Certificate of Appreciation, dated 21 August 1980 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 after his father passed he started suffering from severe depression and anxiety which led him to start drinking heavily. He acknowledged he broke into a beer cooler on post and stole some cases of beer. Consequently, he was court-martialed for this and sent to Fort Riley, KS, to the retraining brigade. He was constantly and purposely singled out as being a Military Policeman in front of the other troops who were primarily infantry Soldiers. For this, he suffered constant threats of beatings and harassment and feared for his life. He was an exemplary Soldier, making Soldier of the month for his company and having received many letters of commendation. He had 18 months of exemplary duty to his credit. He feels the “Other than honorable” discharge was not warranted and he also feels his depression, anxiety and alcohol abuse at the time were not addressed as it should have been. Grief counseling and Alcohol abuse counseling should have been initiated but were not. He further states he has injuries that he sustained during his time in service that were not addressed at the time of his discharge and they have progressively worsened over time causing him to be totally disable and individually unemployable. He has a current claim in progress with the Compensation & Pension department. 3. The applicant provides a self-authored statement explaining the circumstances that led to his discharge. He stated after the passing of his father he suffered from severe depression and anxiety which led him to begin drinking heavily. He just wanted to go home at that point and his problems were never addressed while in the military. He also provides: a. VA Form 21-4138 (Statement in Support of Claim), to support his claim to upgrade his discharge from under other than honorable conditions to honorable and his issues with alcohol and depression. b. Three (3) additional documentation in support of his application for correction statement to the Army Review Board Agency. c. A character letter from retired Lieutenant Colonel DSS attributing to his character while serving together and that whatever mistake was made over 30 years ago should not prevent him from receiving VA benefits. d. His father’s obituary showing the date of his passing. e. Letter of Appreciation endorsement from Captain X passing on the appreciative comments pertaining to outstanding performance of duty on Armed Forces Day. f. Letter of Appreciation endorsement from Major X for outstanding performance of duty on Armed Forces Day. g. Letter of Appreciation from CPT X for exemplary performance during the aftermath of the tornado on 29 June 1980. f. Letter of Appreciation from First Lieutenant X for performance as Soldier of the Month for September 1980. g. Certificate of Appreciation from 523rd Military Police Company for outstanding performance during Armed Forces Day Ceremony. h. A Certificate of Appreciation from 523rd Military Police Company for outstanding support of the disaster relief operations at the Post Trailer Park. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 28 June 1979. b. On 5 February 1981, a special court martial arraigned and tried the applicant for one specification of stealing and unlawfully entering a walk-in cooler to commit a criminal offense on 13 December 1980. The court sentenced him to confinement at hard labor for 3 months, forfeiture of pay and reduction to private/E-1. The convening authority approved the sentence on 6 February 1981. c. The applicant’s complete request for discharge is incomplete, the back page of his voluntary request for discharge, and the DD Form 458 (Charge Sheet) are not available for review by the Board. d. After consulting with legal counsel, the applicant requested discharge from the Army in accordance with chapter 10, for the good of the service of the Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel). He acknowledged: * he was making this request of his own free will and had not been subject to any coercion whatsoever by any person * by submitting this request for discharge, he understood the elements of the offense charged and he is guilty of the charge against him * he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service * as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law e. On 21 April 1981, both the company and battalion commanders recommended approval of an under other than honorable conditions discharge. f. On 22 April 1981, the separation authority approved the discharge action under the provisions of Chapter 10, AR 635-200, for the good of the service and directed that he be discharged under other than honorable conditions. The applicant waived his separation physical. g. On 23 April 1981, the applicant was discharged. 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, Administrative discharge conduct triable by court-martial, with a service characterized of under other than honorable conditions and reduced to the lowest enlisted rank. He completed 1 year, 7 months and 11 days of active service with lost time from 6 February 1981 – 20 February 1981, 21 February 1981 – 28 February 1981 and 1 March 1981- 21 April 1981. It also shows he was authorized or awarded: * Expert Quality Badge/ Rifle M-16 * Expert Quality Badge/ Hand Grenade * Marksman Quality Badge/ Pistol .45 Caliber 5. On 27 September 1984 and 14 April 1987, the Army Discharge Review Board reviewed his case and denied his request for upgrade. 6. 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. A discharge under other than honorable conditions is normally considered appropriate. 7. 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, the Board determined relief is not warranted. The applicant’s contentions, letters of support and post-service achievement 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. As a military policeman, he committed a premeditated criminal offense to steal dozens of cases of alcohol in which he contends was due to severe depression and anxiety. Based upon the offense, 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 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) sets forth the basic authority for the separation of enlisted personnel. 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. a. Paragraph 1-9d (Honorable Discharge) provides that an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated 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) provides that 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. When a member’s service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record c. Chapter 10 of that regulation provides, in pertinent part, that an individual 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 (Revised Edition), 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 him, 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. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. 4. 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) AR20170011374 2 1