ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 July 2019 DOCKET NUMBER: AR20170018036 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his 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) * Self-Authored Statement * Letters of Support FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002075600 on 19 December 2002. 2. The applicant states that he is writing in hopes of giving some understanding to the person he is today and the person he was. He was young and hot headed and finding his wife in bed with another man was too much. He tried to hurt the individual his wife was in bed with, but the man got away from him and out of the house. This caused an argument between him and his wife and he lost his temper. Instead of hitting his wife, he kicked the kitchen door with no idea his son was behind the door. His son lost consciousness and died. He was beside himself with guilt and scared to death. He was charged with murder, pled not guilty even though he knew it was his fault. He is now on parole and is living a very productive life. 3. The applicant provides: a. A letter of support from Mr. X____, who states that he has observed the applicant’s commitment to doing everything that is required of him by parole to be successful and become an active part of society with a positive attitude. He plans to stay an active part of the applicant’s life to help him be the successful man he is striving to be. b. A letter of support from Mr. X____, who states that the applicant is an intelligent man, a master woodworker, and a talented craftsman. He found the applicant to be trustworthy and honest, and expects him to be a productive member of society wherever he goes. c. A letter of support from Deacon X____, who states that the applicant would go to Church regularly and began getting involved in special religion classes, participating as lector and altar server in the weekly worship services. He shared with him how turning his life to the Lord enabled him to experience God's forgiveness and Love for him like never before. He stated the applicant has strong family support and even has a good job after being released from prison. He strongly believes that he has faith in God, is committed to being a law abiding citizen out of prison and rebuilding family ties. d. A letter of support from Ms. X____, his parole officer, that states he completed all required classes as assigned, current on his monthly supervision fees as required and compliant with all the rules and regulations set forth by the Texas Board of Pardons and Parole. e. A letter of support from Mr. X____stating that the applicant has shown a great deal of enthusiasm for his work and has acted very responsibly. He is a team player, a reliable employee and has high moral character. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 6 April 1982. b. On 2 April 1984, the applicant was found guilty of murdering his son in the 27th District Court of Lampasas, TX. He was sentenced to life imprisonment. The Court of Appeals for the State of Texas upheld the decision on 2 April 1986. c. On 20 June 1984, the applicant’s commander notified him of his intent to eliminate him from the service under the provisions of chapter 14 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for a civil conviction. d. On 20 April 1984, he acknowledged receipt of the notification of separation document. He requested to appear before a board of officers, but declined to submit a personal statement on his behalf. He requested counsel. He also acknowledged that he would be ineligible for any or all Veteran benefits as a result of the issuance of an other than honorable discharge. e. On 18 September 1984, he faced an administrative discharge board. The board, after careful consideration, held that the applicant should not be retained by the military, because of his civil conviction for the offense of murder. They recommended the issuance of a discharge under other than honorable conditions. f. On 19 November 1984, the separation authority approved the applicant’s discharge under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel). The applicant would be reduced to the grade of E-1 and issued an Under Other Than Honorable Discharge Certificate. g. On 5 May 1986, he was discharged from active duty with an under other than honorable conditions discharge. The specific reason for his separation was for a civilian conviction. He completed 2 years, 11 months, and 7 days of active service. His DD Form 214 shows he was awarded or authorized: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Hand Grenade Bar 5. On 19 December 2002, the ABCMR denied the applicant’s request to upgrade the characterization of his discharge in Docket Number AR2002075600. 6. By regulation, members may be separated for misconduct, including for minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 7. 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 serious, criminal nature of the misconduct which led to the applicant’s separation, 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. 7/10/2019 X CHAIRPERSON Signed by: 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. AR 635-200 (Personnel Separations Enlisted Personnel), currently in effect, 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 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. 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 Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 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.