ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2019 DOCKET NUMBER: AR20180001570 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge of Dismissal From The Armed Forces of the united States) * DD Form 214 (Report of Separation from Active Duty) * Notification from the Case Management Division to the applicant * Hearing Test * Consent For Release of Information – Congressional * Congressional Correspondence 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 feels, in effect, that with only 3 months left to serve, his leadership did not like him and treated him unfairly. He believes that they did all they could do to make sure he did not receive an honorable discharge. He also states that he was in a motor platoon and have lost hearing in his right ear and was turned away at the Veterans Administration (VA), because of his discharge characterization. He is now on disability and has had to live with the ringing in his ears. His hope is that he can get an upgrade to his discharge, so he can get the assistance from VA that he needs. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 20 August 1975. b. He served in Korea from 10 January 1976 to 14 January 1977. a. c. His service record lists nine Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ); however, three of them were punishments mitigated or vacated and rights, privileges and property affected were restored to the applicant, by the officer who imposed the punishments. d. On the following from/to dates the applicant’s status changed from present for duty to confined by civilian authority back to present for duty: * from 5 March 1978 to 8 March 1978 * from 6 May 1978 to 8 May 1978 * from 25 July to 31 July 1978 * from 21 September 1978 to 25 September 1978 e. According to his DD Form 458 (Charge Sheet), dated 29 January 1979, court- martial charges were preferred against him for the following four specifications: * attempted larceny * disorderly in camp * unlawful entry of privately owned vehicle * making a false official statement f. Following consultation with counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions * he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf g. On 2 April 1979, his chain of command recommended that he be discharged for the good of the service and in accordance with AR 635-200, chapter 10. h. Consistent with the chain of command's recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, a. chapter 10, and directed the issuance of an under other than honorable conditions discharge and a reduction in rank to the lowest enlisted grade prior to separation. i. His DD Form 214 shows he was discharged on 1 May 1979 for the good of the service in lieu of trial by court martial, with a characterization of service of under other than honorable conditions. j. He completed 3 years, 7 months, and 10 days of active service with lost time from 5 March 1978 to 7 March 1978, 25 July 1978 to 30 July 1978, 21 September 1978 to 24 September 1978 and 2 March 1979 to 19 March 1979. His record also show he was awarded or authorized the Marksmanship Qualification Badge with Rifle Bar (M-16). 4. By regulation, a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts- Martial, United States 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. 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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the pattern of misconduct and some involving criminal behavior, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to discharge, 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. 5/28/2019 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. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a provides that an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b provides that a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent non-judicial punishments but not for serious infractions. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The provisions of the Table of Maximum Punishments, Section B, paragraph 127c MCM 1969 (Rev) are not applicable to requests for discharge pursuant to this chapter. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. 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 1. 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.