ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20170018994 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions, discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: the applicant submitted a DD Form 149 (Application for Correction of Military Record). 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: a. It has been 30 years since his discharge. He was very young at the time, it was his first time away from home, and he had no experiences about life on his own or life in general. He learned from his discharge experience and has moved on with his life. He is a grandfather, a church member, takes care of the family, and has contributed to society. b. Before it was known to him, he had passed the entry enlisted tests in the 10th grade and was placed on the list for the delayed entry program. He was not aware that his future was joining the Army. He had never been away from his parents. After his graduation from high school, he left for boot camp. This was a new, strange, and foreign experience for him. He was just young, dumb, and unable to adjust. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 19 June 1979. He was promoted to pay grade E-3 on 19 June 1980. b. He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 29 April and 1 June 1981. His punishment included a reduction to pay grade E-2. He was reduced accordingly on 1 June 1981. c. A bar to reenlistment for him was approved on 5 August 1981. d. Court marital charges were preferred on 27 May 1982. His DA Form 458 (Charge Sheet) indicates he was charged with four specifications of assault and willful destruction of property. e. He consulted with legal counsel on 15 June 1982 and subsequently requested discharge under the provision of AR 635-200 (Personnel Separations – Enlisted Separations), chapter 10. In his request, he acknowledged: * the maximum punishment * he was guilty of the charge against him or of a lesser included offense which authorized a punitive discharge * he did not desire further rehabilitation or a desire to perform further military service * if his discharge was approved, he may be discharged under conditions other than honorable and the effects of the discharge * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State law f. The separation authority approved his request for discharge for the good of the service on 16 July 1982. g. He was discharged accordingly on 22 July 1982. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions discharge. He completed 3 years, 1 month, and 4 days of active service. It also shows he was awarded or authorized the Army Service Ribbon and Expert and Marksman Marksmanship Qualification Badges. 4. By regulation (AR 635-200), 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. A discharge under other than honorable conditions is normally considered appropriate. 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 violent and serious nature of the misconduct which led to discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 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, in effect at the time and currently, sets forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Chapter 10 – 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. b. Paragraph 3-7a – 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. c. Paragraph 3-7b – 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. 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. ABCMR Record of Proceedings (cont) AR20170018994 4 1