ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20180002332 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to a general or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: he submits a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 did not provide a statement. 3. Review of the applicant’s service record shows: a. He enlisted in the Regular Army on 1 August 1980. He was promoted to pay grade E-3 on 1 August 1981. He served in Germany from 24 November 1980 to 13 June 1982. b. He accepted nonjudicial punishment on/for: * 29 October 1981 – leaving his appointed place of duty without authority; his punishment included a suspended reduction to pay grade E-2; on 5 November 1981, the suspended reduction was vacated and ordered duly executed and he was reduced accordingly * 18 November 1981 – wrongfully possessing marijuana; his punishment included a reduction to pay grade E-1; he was reduced accordingly on the same date * 30 March 1982 – failing to go to his appointed place of duty and willfully disobeying an order from his superior commissioned officer * 13 April 1982 – failing to go to his appointed place of duty on two occasions c. His available record contains the following: (1) Request for Discharge for the Good of the Service memorandum, dated 11 May 1982, wherein the applicant, after consulting with counsel, requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), chapter 10. In his request, he acknowledged: * he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person * 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 (2) Request for Discharge for the Good of the Service memoranda, dated 13 and 18 May 1982, wherein the applicant’s chain of command recommended approval of his request and issuance of an Under Other Than Honorable Conditions Discharge Certificate. (3) Request for Discharge for the Good of the Service memorandum, dated 19 May 1982, wherein the separation authority approved his request for discharge for the good of the service under the provisions of chapter 10 of AR 635-200 and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. d. He was discharged accordingly on 14 June 1982. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 10 months, and 14 days of active service. It also shows he was awarded/authorized the: * Army Service Ribbon * Expert and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Overseas Service Ribbon 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 review of the application and all evidence, the Board determined relief is not warranted. 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 relatively short term of honorable service completed prior to a pattern of misconduct, 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002332 4 1