ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 October 2019 DOCKET NUMBER: AR20170013454 APPLICANT REQUESTS: reconsideration, in effect, of the upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous reconsideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC86-10231 on 4 March 1987. The applicant submitted a request for reconsideration on 1 August 2001 (AR2001060965) and 27 April 2006 (AR20050006650), and the staff of the Board determined that there was no basis for resubmitting his application to the board. ABCMR sent a letter to the applicant stating, in effect, the Board would review the request to determine if substantial relevant evidence had been submitted that showed fraud, mistake in law, mathematical miscalculation, manifest error, or there exist substantial relevant new evidence discovered contemporaneously with o within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned to the applicant without action. His request was closed without further action on 28 September 2001. 2. The applicant states, in effect, he would like an upgrade of his under other than honorable conditions discharge to honorable. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army 8 December 1976. b. He accepted non judicial punishment (NJP) under the provisions of Article 15 on 7 September 1977, for without authority, failed to go at the time prescribed to his appointed place of duty. c. He accepted NJP on 11 September 1978 for, having received a lawful command form his superior commissioned officer, to draw his weapon, gas mask, and 90 rounds of ammunition and assume duties, 1 September 1978, did willfully disobey the same. His punishment was reduction to private first class (PFC/E-3) and extra duty for 7 days. d. 13 December 1979, Special Court Martial Order 27, before a Special Court Martial which assembled at Kaiserslautern, Germany pursuant to court martial convening order dated 2 August 1979, the applicant was arraigned and tried. The charge was violation of the UCMJ: * specification 1, the applicant (in Germany) on or about 18 August 1979, wrongfully had in his possession, twenty-seven (27) grams, more or less of marihuana/hashish. The incident occurred outside the territorial limits of the United States. * specification 2, the applicant (in Germany) on or about 18 August 1979, wrongfully sell marihuana/hashish. The incident occurred outside the territorial limits of the United States. * he pleaded guilty to the charge and specifications * the findings to the charge and specifications was guilty * he was sentenced to reduction to the grade of private/E-1, confinement at hard labor for (3) three months, forfeiture of $299 pay per month for (3) months * the sentence was adjudged on 24 October 1979 * findings and sentence approved by convening authority 18 December 1979 e. His commander recommended approval of discharge for misconduct stating, the applicant was sentenced to 3 months confinement on 24 October 1979. Sentence was deferred on 14 December 1979. The original minimum release date was 20 February 1980. The commander concurred with the recommendation that requirements pertaining to counseling and rehabilitation be waived. f. He accepted NJP under the provisions of Article 15 on/for: * 14 January 1980 for being derelict in the performance of his duties in that he willfully failed to participate in all events of a Physical training test, as it was his duty to do so * 20 January 1980 for having knowledge of a lawful order issued by his superior noncommissioned officer, to wit, not to lay down on the floor or bunk and sleep did, on or about 0735 hours, 18 January 1980, failed to obey the same g. On 23 January 1980, the applicant's immediate commander notified him of his intent to initiate separation proceedings due to frequent acts of a discreditable nature. The applicant received 4 Article 15’s and one special court martial. h. Training Progress Notes (no date) his commander discussed: * his right to counsel; his right to an administrative hearing by a board of officers * his right to submit statements in his own behalf * his right to be represented by counsel at any hearing. * the commander explained his waiver privileges and withdraw of waiver privileges i. Additionally, the training progress notes, the applicant acknowledged he understood the commander’s explanation of why he was recommending him for discharge as well as his rights in the discharge proceedings. j. On 23 January 1980, a memorandum from his commander recommended the applicant be discharged under paragraph 14-33, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-33 (Discharge of Personnel for Misconduct-frequent incidents). He recommended the applicant be discharged from the service for misconduct because of frequent incidents of a discreditable nature. Further, the applicant was sent to the Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with improved attitude and motivation. However, individual’s actions since arrival preclude accomplishment of the objective as evidenced by the resume of behavior attitude and ability. Individual demonstrated little desire for returning to duty. He received numerous counseling by members of leadership team and members of the profession staff agencies. The commander states, in his opinion, the applicant possessed the mental and physical ability necessary to be an effective Soldier, but his record and failure to react constructively to the rehabilitation program indicate that he should not be retained in the service. k. On 30 January 1980, the applicant acknowledged receipt of the commander’s intent to separate him and he consulted with legal counsel who advised him of the basis for the contemplated separation action under AR 635-200, paragraph 14, for misconduct, . He acknowledged his understanding of the rights available to him and the effect of any action taken by him in waiving his rights: * he waived consideration of his case by a board of officers * he waived personal appearance before a board of officers * he did not summit a statement on his own behalf l. On 5 February 1980, the separation authority approved the discharge under the provisions of Chapter 14, AR 635-200, and directed, it would be effective on Minimum Release Date. The applicant would be furnished and under other than honorable conditions discharge certificate. m. On 15 February 1980, the applicant signed an affidavit that affirmed he was aware he was being separated from the service on temporary records and that he was absent without leave (24 October 1979-13 December 1979) and confinement (23 January 1908-14 February 1980), were correct to the best of his knowledge. n. On 15 February 1980, the applicant was discharged under the provisions of AR 635-200, paragraph 14-33b(1), for frequent involvement in incidents of a discreditable nature with civil or military authorities. His DD Form 214 shows he completed 2 years, 11 months, and 24 days of active service with lost time from 24 October 1979-13 December 1979 and 23 January 1980-14 February 1980. He was given an under other than honorable conditions character of service. 4. By regulation, AR 635-200, in part states: a. Soldiers are subject to separation under the provisions of chapter 14, for the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense. An under other than honorable is an appropriate and authorized character of service for this chapter. However, the separation authority may direct a general under honorable conditions discharge if such is merited by the member's overall record. 5. Army Regulation (AR) 635-8 (Separation Processing and Documents), the DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty. It states request a DD Form 215 (Correction to DD Form 214) in the event errors are detected on the DD Form 214 after the Soldier’s separation date and for: * item 24 (Characterization of Service), Correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation. The character of service must be one of the seven designations: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct dishonorable, dismissed or uncharacterized. 6. His request to the Board for Correction of Military Records (AR20060006550), noted that he submitted a request for reconsideration on 1 August 2001, and the staff of the Board determined there was no basis for resubmitting his application to the Board. His request was closed without further action on 28 September 2001. 7. 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 short term of honorable service completed prior to a pattern of misconduct, 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 to amend the decisions of the ABCMR set forth in Docket Number AC86- 10231 on 4 March 1987, AR2001060965 on 1 August 2001, and AR20050006650 on 27 April 2006. 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 (Personnel Separations) 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 14, Soldiers are subject to separation under the provisions of chapter 14, for the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense. An under other than honorable is an appropriate and authorized character of service for this chapter. However, the separation authority may direct a general discharge if such is merited by the member's overall record. 3. Army Regulation (AR) 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relating to transition management. It consolidates the policies, principles of support, and standards of service regarding processing personnel for transition. It explains separation document preparation, distribution, correction, and transition processing. It states in: a. Paragraph 5-6 (Rules for Completing the DD Form 214) states for item 24 (Characterization of Service), Correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation. The character of service must be one of the seven designations: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct dishonorable, dismissed or uncharacterized. b. Paragraph 7-1 (Distribution of Records and Documents) states to prepare memorandum to request DD Form 215 (Correction to DD Form 214) in the event errors are detected on the DD Form 214 after the Soldier’s separation date. 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) AR20170013454 5 1