ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 June 2019 DOCKET NUMBER: AR20180002609 APPLICANT REQUESTS: * a reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge * Temporary Duty Orders from Berlin * Good Conduct Medal * Army Service Ribbon * All Awards Not Listed on DD Form 214 (Certificate of Release or Discharge from Active Duty) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from The Armed Forces of the United States FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090021932 on 17 June 2010. 2. The applicant states: a. His life was threatened and he was never given an opportunity to press charges. He wanted to prove that the officer had threatened him twice. The post commander would not see him, talk to JAG or read the military police report. b. He would like the following placed in in his DA Form 201 file (Military Personnel Records Jacket United States Army): * Temporary Duty (TDY) orders to Berlin (there are no orders in his file placing him on TDY) * Good Conduct Medal (there is no evidence in his file showing he was awarded) * Army Service Ribbon; listed on his DD 214 * Overseas Service Ribbon (listed on his DD 214) * All awards and TDY orders not listed on his DD 214 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 13 March 1979, and reenlistment on 15 September 1981. b. On 21 August 1982, he accepted non-judicial punishment for failure to be at his appointed place of duty three times on 28 March 1982 and three times on 6 April 1982. His punishment included reduction to E-3, forfeiture of $158.00 per month for one month, 14 days extra duty and 14 days restriction. c. The complete facts and circumstances of the applicant’s discharge are not contained in the available records. However, his records contain a properly constituted DD 214. The DD Form 214 shows he was discharged on 9 April 1986 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He was issued an Under Other Than Honorable Conditions Discharge Certificate. He served 3 years, 9 months and 3 days. He has lost time from 21 June 1982 to 30 September 1982 and 2 October 1982 to 15 October 1982. He was awarded or authorized: * Marksman Qualification Badge Rifle (M-16) * Sharpshooter Hand Grenade * Army Service Ribbon * Overseas Service Ribbon d. On 22 June 2010, the Army Board for Correction of Military Records determined the evidence presented did not demonstrate the existence of a probable error or injustice, and denied his petition for an upgrade of his discharge. 4. By regulation, a member who has committed an offense 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. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the large amount of lost time in the applicant’s record, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. As to the TDY orders request, the Board agreed that there was insufficient evidence submitted by the applicant to show an error or injustice which would warrant making a change related to the requested relief. For that reason, the Board recommended denying that portion of the applicant’s request. Pertaining to the requested awards, One potential outcome was to grant the Army Good Conduct Medal based upon the applicant completing 36 months of service prior to any recorded misconduct and no letter of denial from the commander; however, the Board concluded that based the applicant’s record is absence any performance ratings during that first 36 months of service, the Board concluded there is insufficient evidence to show that the applicant’s DD Form 214 did not accurately depict all awards previously awarded to the applicant or that the applicant was eligible to receive. However, the Board did note that the applicant had a prior term of honorable service which was not currently depicted on his DD Form 214 and recommended that change be made to more accurately depict his military service. 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 adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 13 March 1979 until 14 September 1981.” 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 all other requested relief. 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. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Chapter 10 of that regulation provides, in pertinent part, that 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. 2. 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. ABCMR Record of Proceedings (cont) AR20180002609 4 1