ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 July 2019 DOCKET NUMBER: AR20180002189 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 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 he was at a movie theatre watching a movie when a fight broke out between black and white Soldiers. He says that he ran out of the theatre with everyone else and the next morning was arrested for being one of the Soldier’s fighting. He says that he had nothing to do with the fight and an injustice was done to him. He states that he was never in any trouble while he was in the Army and that there were a lot of issues between black and white Soldiers back then but he got alone with everyone. He feels that he was unfairly arrested and put in jail for this fight. 3. A view of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 30 July 1971. b. He served overseas in Germany from 8 April 1972 until 20 December 1973. c. He accepted non judicial punishment, under the provisions of Article 15, Uniform Code of Military Justice, on and for the following offenses: * on 27 January 1972, for departing his unit in an absent without leave (AWOL) status on 21 January 1972, and did not return to military control until 27 January 1972 – he was reduced in rank to private/E-2 * on 27 October 1972, for departing his unit in an AWOL status on 3 October 1972 and did not return to military control until 8 October 1972 * on 27 May 1973, for departing his unit in an AWOL status on 1 May 1973, and did not return to military control until 11 May 1973 – he was reduced to private first class/E-3 d. According to his DD Form 458 (Charge Sheet) dated 24 October 1973, court-martial charges were preferred against him for the following 8 specifications: * unlawfully striking another Soldier about the head with his fist on 23 October 1973 * unlawfully striking a different Soldier about the body with a shoe on 23 October 1973 * unlawfully striking yet a different Soldier about the head with a cue ball on 23 October 1973 * unlawfully striking another Soldier on the body with his fist on 23 October 1973 * wrongfully communicate a threat to a Soldier by saying “I’m going to kill you” on 23 October 1973 * brandishing a dangerous weapon to wit: a straight razor on 23 October 1973 * willfully disobey a lawful order on 23 October 1973 * caused a riot by unlawfully assembling with another 20 Soldiers for the purpose of creating a public disturbance on 23 October 1973 e. On 2 November 1973, his DD Form 458 (Charge Sheet) shows court-martial charges were preferred against him for one specification of using disrespectful language towards his superior noncommissioned officer. f. On 20 November 1973, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of a discharge under other than honorable conditions, if the request is approved and of the procedures and rights available to him. g. 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 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 h. On 12 December 1973, his chain of command recommended he be discharged for the good of the service in accordance with AR 635-200, Chapter 10 and receive an undesirable discharge certificate. i. Consistent with the chain of command's recommendation, the separation authority approved his request for discharge and directed the issuance of an undesirable discharge certificate and reduction to Private/E-1. j. He was discharged on 21 December 1973. His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions. It also shows he completed 2 years, 2 months and 11 days of net active service with 71 days of lost time. k. He was awarded or authorized the National Defense Service Medal. 4. By regulation (AR 635-200), 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, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the multiple offenses of a violent, criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted 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. 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 3-7a (Honorable) provides that an honorable discharge is a separation with honor. 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. b. Paragraph 3-7b (General) provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses, the punishment for which, under the UCMJ and the MCM, 1969 (Rev), 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) do not apply to requests for discharge per this chapter unless the case has been referred to a court-martial authorized to adjudge a punitive discharge. The discharge request may be submitted after court-martial charges are preferred against the member, or, where required, after referral, 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002189 2 1