ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 October 2019 DOCKET NUMBER: AR20170012435 APPLICANT REQUESTS: an upgrade of his under honorable conditions discharge (general) to an honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement 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 he was discharged because of a personal grievance between himself and his Commanding Officer. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 11 January 1985 and was discharged on 2 March 1987 for immediate reenlistment. b. He served in Europe from 29 July 1984 to 24 September 1987. c. Special Court Martial Order Number 17, dated 27 April 1987 announced the members of a special court martial for the applicant’s trial. d. Court-martial charges were preferred against the applicant on 11 August 1987. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of assault on his wife by unlawfully striking his wife in the facial area numerous times with a closed fist and kicking her in the stomach and her side on or about 2 June 1987: e. His immediate commander recommended the applicant receive a general discharge, under chapter 10 and his remaining chain of command recommended trial by special court-martial empowered to adjudge a bad conduct discharge. f. He consulted with legal counsel on 21 August 1987. Counsel advised him of the contemplated trial by a court-martial and of his rights. The applicant subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * maximum punishment * he was guilty of the charges against him or of a lesser included offense * he did not desire further rehabilitation or further military service * if his request for discharge was accepted, he may be discharged under other than honorable conditions * as a result of the issuance of an under other than honorable conditions discharge, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life * he elected not to submit a statement in his own behalf g. The applicant supplied a statement on his own behalf for his behavior and why he committed his crime. h. Consistent with the chain of command recommendations, on 31 August 1987, the separation authority approval the applicant’s request for discharge. i. He was discharged from active duty on 25 September 1987. His DD Form 214 for this period of service shows he completed 4 years, 8 months and 15 days of net active service. It also shows he was awarded or authorized the: * Army Service Ribbon * Army Commendation Medal * Overseas Service Ribbon * Good Conduct Medal * NCO Professional Development Ribbon with Number 1 * Army Achievement Medal * Sharpshooter Marksmanship Qualification Badge with (M-16) Rifle Bar * Sharpshooter Marksmanship Badge Grenade * Driver and Mechanic Badge Driver with Bar 4. By regulation, an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An undesirable discharge certificate will normally be furnished for an individual who is discharged for the good of the service. If warranted, however, the discharge authority may direct an honorable or general discharge. 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. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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 offense of a criminal nature, 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. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s records shows his DD Form 214 omitted administrative entries in the Remarks block. As a result, amend the DD Form 214 by adding in item 18 the entry “Continuous honorable service “830111-870302”.” 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, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge), an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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 (General Discharge), 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 states a Soldier who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 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) AR20170012435 4 1