BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20170015936 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20120004030 on 30 August 2012. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 8 August 2017, with self-authored statement FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120004030 on 30 August 2012. 2. As a new argument, the applicant states in effect, he has a good reason for acting as he did while stationed at Fort Polk, LA. His brother was a Marine assigned to with duty at. A typhoon hit the island, causing it to blow up; the only way to survive was to dive through 500 feet of flames into the ocean. There was over 160 marines on the island, and only about 20 survived. His brother survived the aftermath, all the survivors were burned from head to toe. He was not granted leave to be with his brother on his death bed. He is sorry he disrespected the Army but he helped bring his brother back to life. Today his brother is the only survivor, the rest did not make it out of the hospital. 3. The applicant enlisted in the Regular Army on 31 January 1979. 4. The applicant accepted non-judicial punishment (NJP) on 9 September 1979, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the following offenses at Fort Polk, LA: * willfully disobeying a lawful order from his superior noncommissioned officer, and being disrespectful in language to his superior noncommissioned officer, both on or about 21 August 1979 * absenting himself from his appointed place of duty, at the appointed time, on or about 5 September 1979 5. Court-martial charges were preferred against the applicant on 11 September 1979, for violations of the UCMJ. The DD Form 458 (Charge Sheet) shows he was charged with: * two specifications of behaving disrespectfully towards his superior officers, by mumbling and stating obscenities, on or about 7 September 1979 * willfully disobeying a lawful command from his superior commander, for failing to serve his punishment under UCMJ, on or about 7 September 1979 * four specifications of behaving disrespectfully towards his superior noncommissioned officers, by mumbling and stating obscenities, on or about 7 September 1979 * two specifications of wrongfully communicating threats, on or about 7 September 1979 6. The applicant consulted with legal counsel on 24 September 1979. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a bad conduct discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. In an attached statement, he stated: I am aware of the requirements of military service and feel unable to comply with them. I feel a discharge would be in the best interest of the United States Army and myself. [Applicants Signature, dated 18 September 1979] 7. The separation authority approved the applicant's request for discharge on 2 October 1979, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant be issued a DD Form 794A (UOTHC Discharge Certificate). 8. The applicant was discharged on 3 October 1979. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, with his service characterized as UOTHC. 9. The applicant was charged due to the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. Subsequent to being charged, he requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 10. The applicant’s contention that his behavior was caused by his brother being injured and burned in the 1979 fire at Camp Fuji, Japan, is unfounded. The fire at Camp Fuji did not occur until 19 October 1979, 16 days after the applicant was discharged. 11. The applicant applied to the ABCMR for an upgrade of his UOTHC discharge; however, the Board denied his request on 30 August 2012. 12. The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above and considered the applicant’s new evidence contention. However, applicant’s contention that his behavior was caused by his brother being injured and burned in the 1979 fire at Camp Fuji, Japan, is unfounded. The fire at Camp Fuji did not occur until 19 October 1979, 16 days after the applicant was discharged. The Board is glad that the applicant’s brother survived. 2. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 635-200 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 that regulation 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. 2. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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) AR20170015936 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170015936 6 ABCMR Record of Proceedings (cont) AR20170015936 5