ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 June 2019 DOCKET NUMBER: AR20170013880 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge * restoration of his rank to specialist (SPC)/E-4 * a personal appearance before the Board 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) * Table of Contents * Memorandum, subject: Request for Discharge under the provisions of Chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), submitted by Applicant * Six Statements by Applicant * Four Letters to Army Review Boards Agency (ARBA) from Applicant * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Letter from the National Personnel Records Center (NPRC) * Two Letters from ARBA * Excerpt of Court-Martial Charges Against the Applicant * 10 Sworn Statements * Incident Report * DD Form 457 (Investigating Officer’s Report) * DD Form 1920 (Alcoholic Influence Report) * Statement by Staff Sergeant (SSG) H and Response from Applicant * Record of Proceedings under Article 15, Uniform Code of Military Justice * Medical Records * Four Photographs * DD Form 93 (Record of Emergency Data) * Three DA Forms 4187 (Personnel Action) * Personnel Qualification Record – Part I * DA Form 4188 (Military Personnel Office/Finance Office Verification of Military Personnel Records Jacket) * Transfer Orders * Orders 93-186, Orders 51-181 * DD Form 398 (Department of Defense Personnel Security Questionnaire) * Two DA Forms 428 (Application for Identification Card) * DD Form 1966 (Record of Military Processing) * DA Form 3286 (Statement for Enlistment) * Excerpt of DA Form 2-1 (Personnel Qualification Record – Part II) * DA Form 4466 (ADAPCP Client Progress Report) * Two DA Forms 200 (Transmittal Record) * Memorandum, subject: Request for Discharge for the Good of the Service * Memorandum, subject: Court-Martial Charges Against Applicant 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 his discharge should be changed to honorable and his rank restored to SPC/E-4. He was represented poorly by his military counsel who discouraged him from going to trial and detoured him into signing some papers. He had no disciplinary hearing so he does not know why his rank changed to private/E-1. He tried to defend himself from the people who attacked him and he did nothing wrong, it was self-defense. He was uneducated on military administration procedures and did not know that an other than honorable discharge was changed to dishonorable discharge. He adds that he was falsely charged. 3. The applicant provides: * Memorandum, subject: Request for Discharge under the provisions of Chapter 10, AR 635-200, submitted by Applicant which shows the chain of command recommended approval with an other than honorable discharge * Statement, dated 27 March 2013 disagreeing with the charges against him due to him defending himself * Letter to ARBA, dated 20 August 2016, stating he feels mistreated based on the handling of his case through ARBA * Letter from NPRC, dated 4 August 2016, which responding to a request for his records * Letter from ARBA, dated 16 June 2014, which shows his records were requested from the National Archives and Records Administration and they were unavailable * Letter to ARBA, which notified the agency of his address change * Statement regarding the knife attack, which states he was attacked when he went to his friend’s room and he protected himself * Statement regarding why his discharge should be upgraded based on him being young with no knowledge of military procedures, him defending himself, his service during war time, and the hardship he endured for having to pay back his enlistment bonus * Sworn statements regarding the knife attack * Incident Report regarding the knife attack * Statement regarding the fight at the club * Sworn statements regarding the fight at the club * Statement by SSG H regarding the Soldiers going off post after being told not to and the applicant’s response that it was a misunderstanding he disobeying a lawful order * Statement regarding being charged twice for the same charge * Letter to ARBA regarding a misunderstanding with the Department of Veterans Affairs (VA) * Four photographs presumably of the applicant with notes attached regarding an “injury sustained in the attack” * Letter from ARBA, dated 28 May 2016, which shows his requested case was being provided to him 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 17 February 1989. b. He received nonjudicial punishment (NJP) on 9 January 1990. The complete facts and circumstances surrounding the applicant’s NJP are not available for the Board to review. c. The DD Form 458 (Charge Sheet) which would indicate the charges and specifications preferred on the applicant is unavailable for the Board to review. However, the record contains a memorandum, subject: Request for Discharge under the provisions of Chapter 10, AR 635-200, dated 25 February 1991 which shows he was pending general court-martial charges for assault with a dangerous weapon, assault, drunk and disorderly conduct, and failure to obey other lawful order. d. The complete facts and circumstances surrounding the applicant’s discharge are unavailable for the Board to review. e. Consistent with the chain of command recommendations, on 27 February 1991, the separation approval authority approved the applicant’s discharge under the provisions of chapter 10, AR 635-200. The Soldier would be issued an Under Other Than Honorable Discharge Certificate and be reduced to the lowest enlisted grade. f. He was discharged from active duty on 1 April 1991 with an under other than honorable conditions discharge. His DD Form 214 shows he completed 2 years, 2 months, and 15 days of active duty. It also shows he was awarded or authorized: * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar 5. By regulation, 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. 6. 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: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 guidance for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board considered the applicant's statement and found he did not provide evidence of post-service achievements or letters of reference in support of clemency determination. Based upon the misconduct leading to discharge involving dangerous, criminal behaviors, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. His rank was appropriately reduced as a result of the voluntarily request for discharge in lieu of court-martial. Based on a preponderance of evidence, the Board concluded there was no error or injustice which would warrant restoring the rank 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: 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. 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. 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, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states 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) states 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 15-185 (ABMCR) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABMCR will decide cases on the evidence of record. It is an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABMCR may grant a formal hearing whenever justice requires. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.