ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 12 March 2019 DOCKET NUMBER: AR20170018203 APPLICANT REQUESTS: upgrade his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Army Discharge Review Board) * Three letters of support * Medical documents (not available with application) 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 AR20060016940 on 19 June 2007. 2. The applicant states he is seeking this upgrade so he can get medical and housing benefits. When he initially signed his discharge papers, he failed to read what he was signing. He acknowledges he should have sought a better understanding through his superiors. Because of this, he hurt himself and made things difficult; he is now in need of support from the Department of Veterans Affairs (VA). 3. The applicant provides three letters of support, which indicate the applicant is a dedicated professional with excellent character and a strong work ethic. 4. The applicant's service record shows: a. He enlisted in the Regular Army on 15 May 1979. Following initial training, orders assigned him to Fort Riley, KS and he arrived on 8 October 1979. b. Between May 1979 and September 1980, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on four occasions: * two specifications for falling asleep while on guard * failing to go to his appointed place of duty at the time prescribed * striking a superior commissioned officer on the forehead with his closed fist and behaving with disrespect toward a superior commissioned officer * acting is a disorderly manner by beating superior noncommissioned officer's door with a baseball bat and using disrespectful language toward a superior noncommissioned officer c. The applicant's separation packet is not available for review, but his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty), which shows he was discharged on 4 February 1981 under other than honorable conditions. The separation authority was paragraph 14-33b(1) (Other Misconduct – Patterns of Misconduct – Frequent Incidents of Discreditable Nature with Civil or Military Authorities), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). d. On 23 November 2006, he petitioned the Board requesting a character of service upgrade to honorable. He argued his leadership did not explain the consequences of his discharge; he maintained he was a dedicated patriot who had the desire to be an upstanding citizen. The Board found he had not filed his application within the statutory 3-year time limit; in addition, the Board determined the applicant had not provided sufficient evidence that would warrant waiving the time limit. 5. AR 635-200 required commanders to identify Soldiers for discharge when they displayed a pattern of misconduct; this included Soldiers who were involved in frequent incidents of a discreditable nature with civil or military authorities. Due to the lack of evidence we are unable to determine the specific circumstance(s) that led to his discharge; however, although the applicant's separation packet is not available, in light of the DD Form 214, the Board presumes the applicant's leadership completed his separation properly. 6. The applicant requests an upgrade so he may obtain medical benefits and provides evidence, in the form of letters of support, that attest to post-service accomplishments. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and letters of support were carefully considered. The Board agreed clemency is not warranted specifically to provide access to benefits, and the discharge characterization was justified 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. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-33 (Other Misconduct). Commanders identified Soldiers for discharge when they displayed a pattern of misconduct; this included Soldiers who were involved in frequent incidents of a discreditable nature with civil or military authorities. An under other than honorable conditions character of service was normally issued for Soldiers discharged under this provision. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 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 on the basis of 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) AR20170018203 2 1