ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20170013692 APPLICANT REQUESTS: * reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge * issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050002176 on 4 October 2005. 2. The applicant states he is requesting an upgrade of his discharge to general or an honorable discharge for entitlement to benefits. He also wishes to receive another DD Form 214. His discharge happened 19 years ago. 3. Review of the applicant’s military record shows: a. He enlisted in the Regular Army on 8 May 1986. He held military occupational specialty 63W (Wheel Vehicle Repairer). He was promoted to pay grade E-3 on 1 April 1987. He served in Korea from 15 January 1986 to 13 January 1988. b. A DA Form 458 (Charge Sheet), dated 26 April 1988, shows court-martial charges were preferred against the applicant for one specification of stealing the property, of a value of about $1,285.00, from a Soldier between 29 and 30 March 1988. a. c. On 27 April and 2 May 1988, the applicant’s chain of command recommended trial by special court-martial empowered to adjudge a bad conduct discharge. d. A DA Form 4187 (Personnel Action), dated 6 May 1988, shows he received a nonjudicial punishment on 22 December 1987 and was reduced to pay grade E-1, with a new date of rank of 22 December 1987. e. A DA Form 2496 (Disposition Form), dated 20 May 1988, shows the staff judge advocate recommended the charges against the applicant be referred to trial by special court-martial empowered to adjudge a bad conduct discharge. f. On 7 June 1988, after consulting with legal counsel, he was advised of the basis of contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice. Following this consult, he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He acknowledged: * maximum punishment * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Other Than Honorable Discharge Certificate * he may be deprived of many or all Army benefits * 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 waived his rights and elected not to submit a statement in his own behalf g. On 9 and 14 June 1988, his chain of command recommended approval of his discharge request. h. On 22 June 1988, the separation authority approved his discharge and directed the issuance of an under other than honorable conditions discharge. i. Accordingly, he was discharged from active duty on 29 June 1988, pursuant to chapter 10 of AR 635-200. His service was characterized as under other than honorable conditions. His DD Form 214 shows he completed 2 years, 1 month, and 22 days of active service. This form also shows he was awarded/authorized the: * Army Service Ribbon * Overseas Service Bar * Marksman Marksmanship Qualification Badge with Rifle (M-16) * Sharpshooter Marksmanship Qualification Badge with Grenade Bar * j. On 4 October 2005, the ABCMR determined there was an insufficient evidentiary basis to support granting the requested relief and denied his petition for an upgrade of his discharge. 4. By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes an undesirable discharge, may submit a request for discharge in lieu of trial by court-martial. 5. 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. 6. By regulation (AR 635-5), a DD Form 214 would not be reissued except when directed by proper appellate authority, Executive Order, or by the Secretary of the Army; or the original DD Form 214 was not properly corrected with issuance of a DD Form 215 (Correction to DD Form 214), or the correction required the issuances of more than two DD Forms 215. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance for consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the aplicant's statement, the misconduct involved in the separation involving large amounts of larceny and a lack of remorse for the misconduct shown by the applicant in his application. The Board found the applicant provided no evidence of post service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 7/9/2019 X CHAIRPERSON Signed by: 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. 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. The regulation stated in: a. Paragraph 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) – a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 – an individual who had committed an offense or offenses, the punishment for which included an undesirable discharge, could submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service; however, the separation authority could direct a General Discharge Certificate, if such was merited by the Soldier’s overall record during the current enlistment. 2. 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. 1. 3. AR 635-5 (Separations Documents), in effect at the time, prescribed the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214 (Certificate of Release or Discharge from Active Duty). The regulation stated once a DD Form 214 had been issued, do not reissue except for the following reasons: * when directed by proper appellate authority, Executive Order, or by the Secretary of the Army * when it was determined that the original DD Form 214 could not be properly corrected by issuance of a DD Form 215 (Correction to DD Form 214) or if the correction would require issuance of more than two DD Forms 215 * when two DD Forms 215 had been issued and an additional correction was required * when a DD Form 214 was administratively issued or reissued, enter that fact and the date of such action on the DD Form 214, item 18 (Remarks); unless the appellate authority, executive order, or Secretarial directives specified otherwise * a DD Form 214 would not be issued to replace record copies or DD Forms 214 lost by Soldiers; if no DD Form 214 was available, a statement of service or transcript of military record would be issued