ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20170013687 APPLICANT REQUESTS: upgrade of discharge from under other than honorable conditions to honorable or general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 has a general discharge (i.e., under other than honorable conditions discharge). He also states he graduated his advanced individual training as one of the top students in his class. After more than a year in his unit, he was never given the opportunity to apply his skills to anything relative to his training. Things appeared to get worse after he complained to his commanding officer, which he states later led him to rebellious behavior. The applicant went on to say, the rebellious behavior let to numerous Article 15s and a court-martial, which let to even worse behavior, eventually leading to him accepting a general discharge. He never would have accepted a general discharge had he known it was not honorable. He was young and foolish and did not inquire as to what exactly a general discharge would mean. He has lived most of his life in shame and says he does not need benefits as he is almost 65 years old and Medicare is available. He requests to allow him to live the last few years of his life with dignity. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 23 January 1970 and attained the rank of private first class/E-3. b. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 on/for: * 9 November 1970, failing go to his appointed place of duty at the prescribed time without authority; his punishment consisted, in part of a reduction to private/E-2 (reduction suspended for 60 days) * 28 November 1970, suspended punishment of reduction to private/E-2 was vacated * 3 August 1971, failing to obey a lawful command issued his superior officer and his senior noncommissioned officer, his punishment consisted, in part of a reduction to private/E-2 c. On 30 November 1971, while in Heidelberg, Germany, he was charged by a special court-martial in accordance with Special Court-Martial Order Number 2, dated 21 January 1972, issued by Headquarters, 56th Artillery Brigade, of: * one specification of willfully disobeying a lawful order * one specification of willfully damaging by force, without proper authority, the bar doors in the Battery D Day Room * one specification of wrongfully appearing at Patton Barracks, Heidelberg, in an improper uniform * one specification of operating a ¼ ton truck in a reckless manner by driving too fast for conditions, popping the clutch and causing the wheels to spin d. The judge sentenced him to be confined at hard labor for a period of two (2) months and to forfeit $95. 00 a month for a period of three (3) months. e. On 21 January 1972, the convening authority approved the sentence and ordered it duly executed, but the execution of that portion thereof that provides for confinement at hard labor in excess of 35 days, was suspended until 31 May 1972, at which time, unless the suspension is sooner vacated, the unexecuted portion of the sentence will be remitted without further action. f. The record of trial, findings, and sentence were forwarded to the Headquarters, U.S. Army Europe, (USAREUR) and Seventh Army Combat Support Command, Office of the Staff Judge Advocate, for review. The Office affirmed the findings and sentence on 10 February 1972. g. Special Court-Martial Order Number 4, dated 18 February 1972, issued by Headquarters, 56th Artillery Brigade, vacated the execution of the approved sentence to confinement at hard labor for 2 months (in part, the suspension in excess of 35 days), imposed. The unexecuted portion of sentence to confinement was duly executed. The applicant was confined in Mannheim, Germany, and the confinement was served therein or as competent authority directed. h. The facts and circumstances surrounding the reason for the applicant’s separation from active service was not available. However, his record contains: (1) Special Orders Number 115, dated 24 April 1972, issued by Headquarters, U.S. Army Personnel Center, Fort Dix, NJ, released the applicant from active duty and transferred him to the U.S. Army Reserve (USAR) Control Group (Annual Training) on 24 April 1972. (2) DD Form 214 (Armed Forces of the Unites States Report of Transfer or Discharge) shows he was discharged in accordance with Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 10, in the rank/grade of private/E-1, with a under other than honorable discharge. His DD Form 214 shows he was not transferred to the USAR Control Group. He completed 2 year, 3 months, and 2 days of creditable active military service with no lost time. He was awarded or authorized the following National Defense Service Medal, the Army Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle Bar. 4. By regulation (AR 635-200), 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. 5. 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 there is insufficient evidence to grant relief. 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 record, 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) 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, in effect at the time, 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. 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) AR20170013687 2 1