BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20180000077 APPLICANT REQUESTS: The 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 Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 wants to get some military help for his health. 3. On 20 September 1978, the applicant enlisted in the Regular Army for a period of 3 years. 4. On 24 March 1981, he immediately reenlisted in the Regular Army for 3 years. 5. On 12 March 1982, a final Criminal Investigation Department Report of Investigation indicated the applicant was appropriately titled for the offenses of attempted rape and indecent acts. 6. On 30 March 1982, court-martial charges were preferred against the applicant for attempted rape and unlawfully entering the barracks room of private SLO. 7. On 6 April 1982, Major CLN was appointed to investigate the charges pertaining the applicant. The investigating officer’s report is not available. 8. On 7 May 1982, the applicant voluntarily requested to be discharged for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He consulted with military legal counsel. a. He was advised of his rights and the implications that were attached to his request for discharge. He was also advised of the basis for his contemplated trial by court-martial and the possible effects of an under other than honorable conditions discharge. b. He acknowledged that he understood he would be deprived of many or all Army benefits, and may be ineligible for many or all benefits administered by the Veterans Administration (VA). He also acknowledged that he may be deprived of his rights and benefits as a veteran under other Federal and State law. c. The applicant elected not to submit a statement in his own behalf and acknowledged that he had personally made the choice and was not coerced by any person. d. His chain of command recommended approval of his request to be discharged, and recommended the applicant be issued an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate. The reasons for their recommendation were: * the applicant had a civil conviction for indecent assault and was pending discharge under the provisions of chapter 14, AR 635-200 at the time of his misconduct * the applicant was found guilty of contributing to the delinquency of a minor, which originated from a charge of taking indecent liberties with a child e. A medical examination and a mental status evaluation medically cleared the applicant for administrative separation. f. The separation authority approved the applicant’s request for discharge and directed that he be issued a UOTHC Discharge Certificate. 9. On 10 June 1982, the applicant was discharged accordingly. He had completed 3 years, 8 months and 21 days of creditable active military service. His DD Form 214 shows he was awarded or authorized the: * Army Good Conduct Medal * Army Service Ribbon * Driver Badge * Expert Qualification Badge with Hand Grenade Bar * Marksman Qualification Badge with Rifle Bar (M-16) 10. His DD Form 214 also shows in item 18 (Remarks) “Immediate Reenlistment this period: 810324 – 840323.” 11. The record contains no indication of procedural or other errors that would tend to have jeopardized the applicant’s rights. 12. AR 635-200, chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions was normally considered appropriate. 13. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. 14. Entitlement to VA benefits is neither within the purview of this Board nor is it normally considered a basis for granting relief. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the severe nature of the applicant’s misconduct and civil conviction, the applicant’s statement regarding his need for healthcare, the lack of additional mitigating factors or post-service statements of support from the applicant and whether to apply clemency. The Board concurred with the administrative correction described below, but determined that there was insufficient evidence to mitigate his misconduct or support clemency and found that the character of service the applicant received was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. 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: Except as stated in the administrative notes below, 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): A review of the applicant's record shows his DD Form 214, for the period ending 10 June 1982, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 780920 UNTIL 810323 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 Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel: a. Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions was normally considered appropriate. b. Paragraph 3-7a provides that 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 provides that 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. a. 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. b. 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) AR20180000077 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180000077 7 ABCMR Record of Proceedings (cont) AR20180000077 4