ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20180001225 APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), with self-authored statement dated 6 December 2017 * DD Form 214 (Report of Separation from Active Duty), for the period ending 25 May 1978 * DD Form 794A (UOTHC Discharge Certificate), dated 25 May 1978 * 2 Photocopied pictures * 2 pages listing his job experience from January 1998 through the present * Photocopies of his social security (SS) card, driver’s license, and three employee identification (ID) badges * Ministry Discipleship Certificate of Completion, dated 11 September 2005 * Baptism Certificate, dated 2 October 2005 * Standard Form (SF) 50 (Notification of Personnel Action), dated 27 April 2010 * Certificate of Ordination, dated 12 June 2011 * 8 Federal Emergency Management Agency (FEMA), Certificates of completion for independent study courses from 15 June 2011 through 16 July 2011, and a congratulations letter for completing the courses * 2 Department of Mental Health, letters of consideration for appointment, dated 16 August 2012, and 15 August 2017 * A document titled “The Resolution,” dated 9 September 2012 * Childcare Aware of Missouri mailed flyer, for Early Childhood Workshops * Security Awareness Training certificate, dated 1 November 2014 * State of Missouri Veteran’s, Thank you Program, dated 10 November 2014 * Veteran’s Day, Award of Merit, dated 11 November 2014 * Deacon’s training completion certificate, dated 10 January 2015 * 2 Certificates of completion for Security Mentor classes, dated 16 August 2015 and 11 October 2015 * Certificate of Recognition, for 5 years of service dated 1 June 2016 * Men Planting Seeds, Mission Statement * Birthday Message from Senator, dated January 2017 * Election Board Notification, dated 4 April 2017 * Department of Mental Health, letters of promotional appointment, dated 20 November 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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, in effect: a. He joined the Army in 1976 because he thought it was his best choice. He lost his great-grandmother during this time, which he took hard. The Army taught him discipline and training, which has helped structure his future. He still makes sure his gig line is straight and to use proper greetings, such as “yes sir” and “no ma’am.” He made the choice to leave the military because of the effect his great-grandmother’s passing had on him. b. He has been servicing the public and the State of Missouri since his discharge. He enclosed documents, letters and even his resume to show what he has done with his life. He has worked in restaurant management, retail management, a small business owner, been cleared to work at an airport, a child care provider, worked for the U.S. Census, and now for the State of Missouri as a Security Supervisor. He has worked part time for St. Louis City and County Security Officer. He is a Deacon of the church and now the Founder, President, and CEO of a non-profit organization to help mentor young men [Men Planting Seeds]. His life has been good, and as he nears retirement he would like to change his discharge. If possible, he would come back to serve out the 8 months he had left. He will always be grateful and remember his years in the Army, indicated by his service pictures and medals, which he still shows proudly. 3. The applicant enlisted in the Regular Army on 2 April 1976. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: a. On 6 June 1977, for 1 specification of willfully disobeying a lawful order, on or about 27 May 1977, and 1 specification of failing to go to his prescribed place of duty at the prescribed time, on or about 31 May 1977, in Manheim, Germany. b. On 26 September 1977, for 1 specification of failing to go to his prescribed place of duty at the prescribed time, and 3 specifications of willfully disobeying a lawful order, on or about 20 August 1977. c. On 20 October 1977, for 1 specification of failing to go to his prescribed place of duty at the prescribed time, and 1 specification being intoxicated on duty, on or about 18 October 1977. d. On 22 December 1977, for 1 specification of failing to go to his prescribed place of duty at the prescribed time, on or about 13 December 1977. 5. Special court-martial charges were preferred against the applicant on 8 April 1978, for violations of the UCMJ. He was charged with two specifications of being absent from his unit, from on or about 5 January 1978 through on or about 6 January 1978, and from on or about 18 January 1978 through on or about 1 March 1978. He plead guilty and was convicted on 10 March 1978. His sentence included 2 months at hard labor, to be served at the U.S. Army Confinement Facility – Manheim; however, he was later transferred to Fort Riley Retraining Brigade. The sentence was approved and ordered to be duly executed on 10 March 1978. 6. The applicant's commander notified the applicant on 18 May 1978 that he was recommending him for discharge from military service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, due to (misconduct), for frequent incidents of a discreditable nature. The commander’s request included a three page summary of the applicant’s attitude, conduct, performance and discreditable acts. 7. The applicant accepted NJP on 19 May 1978, under the provisions of Article 15 of the UCMJ, for failing to obey a lawful order on or about 14 May 1978. 8. The applicant consulted with counsel on 19 May 1978 and was advised of the basis for the contemplated actions to separate him for misconduct, under the provisions of Army Regulation 635-200, Chapter 14 and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a UOTHC discharge. He subsequently requested a waiver of his separation physical examination. 9. The applicant's commander formally recommended his separation from service, under the provisions of Army Regulation 635-200, paragraph 14-33, due to his misconduct because of frequent incidents of a discreditable nature and failing to respond favorably to counseling while assigned to the retraining brigade. His intermediate commander recommended approval of his separation. 10. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge under the provision of Army Regulation 635-200, Chapter 14, and directed he receive a UOTHC discharge. 11. The applicant was discharged on 25 May 1978. His DD Form 214, shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, and his service was characterized as UOTHC. His DD Form 214 further shows in: * Item 9c (Reason and Authority), the entry "Para 14-33b (1), AR 635-300 SPN JKA" * Item 18c (Total Active Service), he was credited with completing 1 year, 10 months, and 15 days of active service * Item 30 (Remarks), includes the entry "99 Days lost under 10 USC 972 from 18Jan78 thru 28Feb78; 2Mar78 thru 27Apr78" 12. The applicant applied to the Army Discharge Review Board on 11 September 1978. The Board determined, on 17 October 1980, he was properly discharged and denied his request. 13. The applicant provides 40 pages of documentation to show his post-service achievements. These items include copies of his DD Form 214; 2 military service pictures; DD Form 794A; driver’s license and SS card, with three former employee ID badges; employment history and business cards; certificates his baptism, for ministry discipleship, Deacon training and Ordination; eight FEMA certificates of completion and a letter of congratulations; two consideration of appointment letters, with a promotional appointment letter and SF 50; and a mission statement for his non-profit organization. 14. In reaching its determination, the Board should consider the applicant's request, and his post service achievements in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant partial relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found the statement and evidence of honorable post-service achievements to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s post-service achievements have partially mitigated the misconduct resulting in the discharge characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing the discharge characterization of service on his DD Form 214 to General under Honorable Conditions. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to Honorable. 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. 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 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 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. Army Regulation 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. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records, on 25 July 2018, regarding equity, injustice, or clemency determinations. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. b. 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, Boards 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. c. 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) AR20180001225 6 1