ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 March 2019 DOCKET NUMBER: AR20170017541 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement in support of claim * Order of the Spur * DD Form 214 (Certificate of Release or Discharge from Active Duty), for period ending 4 August 1980 * Welcome letter to 25th Infantry Division – Vietnam FACTS: 1. The applicant states that he was with his family having dinner at the NCO Club when a private of his company came over and wanted to talk to his daughters. He asked the private to leave but he started to use profanity. The applicant asked him to leave again and again and then asked him to step outside to talk. The private swung at him so he stabbed him in the stomach and then took him to the hospital and called the military police (MP). The MPs took the applicant to the station and asked him what happened. He told them he had thirteen years of good active duty time. He is now seeking to have his other than honorable discharge upgraded to general, under honorable conditions. 2. He enlisted in the Regular Army (RA) on 6 December 1967. 3. He provides an Order of the Spur for the period of 1968 -1969. 4. A review of his service records shows the following: * he was honorably discharged for immediate reenlistment on 28 May 1970 * he reenlisted on 29 May 1970 * he was honorably discharged on 26 October 1977 for immediate reenlistment * he reenlisted on 27 October 1977 5. He accepted nonjudicial punishment (NJP) on 2 October 1979 for damaging government property. 6. On 31 January 1980, he was found guilty at a general court martial and reduced to private first class (PFC)/E-3 for carrying a concealed weapon and committing an assault and inflicting grievous bodily harm. 7. On 20 March 1980, he accepted NJP for violating a lawful order. His punishment included reduction to private (PV2)/E-2. 8. On 27 March 1980, a bar to reenlistment was approved. 9. On 1 April 1980, the convening authority approved the sentence of the applicant’s general court martial. 10. On 27 March 1980, his immediate commander initiated elimination proceedings on under the provisions of Army Regulations 635-200 (Personnel Separations - Enlisted Personnel) chapter 14 (Misconduct). 11. On 20 June 1980 a board of officers convened and found: * he was undesirable for further retention because of serious incidents of discreditable nature with military authorities * he was undesirable for further retention because of substandard performance * rehabilitation not deemed possible 12. The board recommended that the applicant be discharged from the service because of misconduct with an issuance of an Under Other Than Honorable Discharge Certificate. 13. On 22 July 1980, the separation authority approved the applicant’s discharge 14. He was discharged on 4 August 1980 under the provisions of AR 635-200, chapter 14. His DD Form 214 shows he completed 2 years 9 months, and 8 days of active service. It also shows he was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal * Good Conduct Medal (2nd Award) * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 caliber) * Safety Drivers Badge 15. The applicant applied to the Army Discharge Review Board (ADRB) for a discharge upgrade. On 20 March 1984, the ADRB determined that the applicant was properly and equitably discharged and denied his request. 16. By regulation, Soldiers are subject to separation under the provisions of chapter 14 for patterns of misconduct, including frequent incidents of discreditable nature with civil or military authorities. An under other than honorable conditions discharge was an appropriate and authorized characterization of service. 17. 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 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 standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 (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 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as a general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Chapter 14 of that regulation provides that members are subject to separation under the provisions of this section for patterns of misconduct , including frequent incidents of discreditable nature with civil or military authorities. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170017541 5 1