ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20170017791 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 Records). 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 would like his other than honorable conditions discharge upgraded to honorable. He also states he does not think his other than honorable conditions discharge is so severe that it cannot be upgraded to an honorable discharge. At the time, he was a young Soldier and did not know better. He is older now and thinks he deserves an honorable discharge. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 22 March 1983. b. He served in Germany from 8 September 1983 to 7 March 1985. c. He accepted nonjudicial punishment on/for: * 28 July 1983, for being absent without leave (AWOL) for from 18 July 1983 to 24 July 1983 * 17 August 1983, for breaking restriction, AWOL on 14 August 1983, and failing to be at his place of duty * 29 December 1983, for assaulting a noncommissioned officer (NCO) and a fellow private; his punishment consisted of a reduction to pay grade E-1 * d. On 22 March 1984, he was barred from reenlistment for continued incidents of an unsuitable nature, specifically, involvement in fights and assault on an NCO. e. The complete facts and circumstances surrounding the applicants discharge are unavailable for the Board to review. However, his available service record shows he consulted with counsel on 14 March 1984 and voluntarily requested to be discharged for the good of the service after charges had been preferred against him under the Uniform Code of Military Justice, each of which authorized the disposition of a bad conduct or dishonorable discharge. He acknowledged his understanding of the following: * 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 punitive discharge * 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 * he elected not to submit a statement in his own behalf f. The immediate commander recommended approval and stated the applicant’s attitude, conduct and job performance since his arrival in this unit had been far below the standards expected of any Soldier in the U.S. Army. The charges pending against him were serious and he did not have the desired rehabilitative potential to remain in the service. g. Consistent with the chain of command’s recommendation, the separation authority approved the applicant’s discharge request on 16 April 1984. He ordered the applicant be issued a discharge certificate under other than honorable conditions (DD Form 794A). h. On 25 April 1984, he was discharged from active duty under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year and 28 days of active service and he had 6 days of lost time. It also shows he was awarded or authorized: * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar 4. By regulation, a member 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. An under other than honorable discharge is normally appropriate for a member who is discharged for the good of the service. 1. 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 short term of service completed prior to multiple UCMJ offenses, some of which involved violent behaviors, 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. 845 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 635-200 (Personnel Separation – 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 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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge c. Chapter 10 of that regulation states a member 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. An under other than honorable discharge is normally appropriate for a member who is discharged for the good of the service. 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 1. 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.