ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20170015642 APPLICANT REQUESTS: 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) * DD Form 293 (Application for the Review of Discharge) 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 was young and inexperienced at the time of enlistment. He was accused of hitting a lieutenant but there were no witnesses. He was thrown in the stockade for about 30 to 40 days. The officers were adverse to him because he was a “smart a---.” He did not hit the officer. He was offered a deal to get out of the stockade and sign some papers. He was frightened and received no assistance, so he took the deal. In summary: * He was falsely accused * There were no witnesses * He was inexperienced with the law and his legal rights * He served our country but he was young and inexperienced * He had no authority or power 3. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 6 December 1971. b. He accepted nonjudicial punishment on/for: * 5 March 1972, unlawfully hitting another Soldier and willfully disobeying a lawful order * 13 March 1972, willfully disobeying a lawful order * 15 March 1972, unlawfully hitting another Soldier on his arm, unlawfully hitting a second Soldier on his face, and wrongfully communicating a threat to kill a Soldier * 20 April 1972, being disrespectful to a sergeant and hitting a Soldier in the back of his head * 26 July 1972, being disrespectful towards a sergeant * 29 September 1972, being disrespectful in language towards a sergeant on two different occasions c. On 17 January 1973, court-martial charges were preferred against him for: * one specification of striking a lieutenant in the neck with his fist * one specification of offering violence against his lieutenant * one specification of communicating a threat to kill the lieutenant * one specification of being disorderly in the dining facility d. On 12 March 1973, he consulted with legal counsel and subsequently requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * the basis of this trial by court-martial which could lead to a bad conduct or a dishonorable discharge, and maximum punishment * he had not been subjected to any coercion * he understood if the request for discharge is accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * he understood that, as a result of the issuance of such a discharge, he could be deprived of many of all Army benefits * he could be ineligible for many or all benefits administered by the Veterans' Administration * he could be deprived of his rights and benefits as a veteran under both federal and state law * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge e. The chain of command recommended approval of his discharge with the issuance of an under other tan honorable conditions discharge. The executive officer stated the applicant’s rebellious attitude manifested in violent acts of assault upon noncommissioned officers and commissioned officers. He had been rehabilitatively transferred but flagrant disrespect continued. f. On 19 March 1973, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge. He would be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate. g. He was discharged from active duty on 2 April 1973 under the provision of AR 635-200, chapter 10. His service was characterized as under other than honorable conditions. 5. By regulation, a member who has committed an offense 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. 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: 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 short term of service completed prior to multiple UCMJ violations, some of which were violent in nature, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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, U.S. Code, 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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. When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. 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 provides that 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. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’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 (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. ABCMR Record of Proceedings (cont) AR20170015642 4 1