ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20170014462 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. 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 he is applying for benefits for the first time in his life. He is fervently prayerful the Board will consider his service and approve his eligibility. His dedication throughout life will remain with his country and family. He believes his discharge is in error because; a noncommissioned officer threaten him and advanced toward him in a threatening manner and asked if he wanted to fight. When the he responded in the affirmative, the noncommissioned officer stated the applicant threaten him. He chose the discharge, but he did not know it would be other than honorable. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 13 March 1967. He served in Vietnam from 28 January 1969 to 12 June 1969. b. On 19 September 1968, he accepted nonjudical punishment under article 15 for failing to go to his appointed place of duty. c. On 12 June 1969, he received a special court martial and found guilty of failing to obey a lawful order from a noncommissioned officer and wrongfully communicating a threat to a noncommissioned officer. Only so much of the sentence as provides for forfeiture of $75.00 per month for six months, confinement at hard labor for three months, and reduction to the grade of private first class/ E-3, is approved and will be duly executed, but the execution of that portion thereof adjudging confinement at hard labor for three months is suspended until 30 November 1969, at which time unless, sooner vacated, the suspended portion of the sentence will be remitted without further action. He was reduced to private first class/E-3. d. On 16 June 1969, court-martial charges were preferred. His DA Form 458 (Charge Sheet) indicates he was charged with: * Specification 1,disrespectful in language toward Staff Sergeant CR * Specification 2, disobey a lawful order from Staff Sergeant CR * Specification 3, wrongfully communicate a threat to Staff Sergeant CR e. On 19 June 1969, the applicant received a medical and mental evaluation and was found within normal limits. There was no evidence of a psychological disorder, cleared for any administrative action deemed appropriate by command. f. On 23 June 1969, he consulted with legal counsel and subsequently requested discharge under the provisions of chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request he acknowledged: * maximum punishment * he understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge * he understood if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an Undesirable Discharge Certificate * if an under other than honorable conditions discharge was issued, he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the Veterans Administration and benefits of a Veteran under Federal and State law * he elected to not submit a statement on his own behalf g. On 24 June 1969, consistent with the chain of command’s recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) and directed the applicant receive an under other than honorable conditions discharge, and reduction to the lowest enlisted grade. h. On 14 July 1969, he was discharged from active duty. His DD 214 for this period of service shows he was discharged in accordance with chapter 10 of AR 635-200, (Personnel Separations – Enlisted Personnel) separation program number (SPN) 246; discharge for the good of the service, with an under other than honorable conditions characterization of service. i. He completed 2 years, 4 months and 2 days of net active service and he was awarded or authorized the: * National Defense Service Medal * Vietnam Service medal * Vietnam Commendation Medal * Marksman Marksmanship Qualification Badge (M-14) 4. By regulation, AR 635-200, a member who has committed an offense or offenses, the punishment for any of which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable discharge is normally appropriate for a member who is discharged for the good of the service. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the pattern of misconduct which led to the applicant’s separation and a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, 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. 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 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 1-13b (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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. c. Paragraph 10-1 (General) states a member who has committed an offense or offenses, the punishment for any of which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge, if such are merited by the member’s overall record during the current enlistment. 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 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. ABCMR Record of Proceedings (cont) AR20170014462 4 1