ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20180003936 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 that he was young and dumb, more than 20 years ago when he got into trouble. He states that there was nothing for them to do during that time when the Army was downsizing its numbers. There was no real misconduct of any kind and he wants to stop paying for his mistakes. 3. A review of the applicant’s service record shows: a. He enlisted on 21 June 1978 in the Regular Army for 3 years. b. His DA Form 2-1 (Personnel Qualification Record) shows after completing basic training, advanced individual training and airborne school that he was assigned to Fort Bragg, NC. c. He accepted nonjudicial punishment (NJP) under Article 15 on/for: * 2 May 1979, being absent without leave (AWOL) on 22-23 April 1979, his punishment included forfeiture of $97, reduction to E-1, correctional custody for 7 days * 31 August 1979, being AWOL on 17 August 1979 from his place of work on or about 0700 hours and 17 August 1979, bring AWOL from his place of duty on or about 1700 hours, his punishment included forfeiture of $109 (suspended until 27 October 1979), reduction to the grade of private / E-2 and extra duty for 7 days * 7 February 1980, disrespectful to a noncommissioned officer and on or about 29, 30 and 31 December 1979 break restriction, his restriction included forfeiture of $104.72, restriction and extra duty for 7 days effective 14 February 1980 d. The complete facts and circumstances surrounding the applicant’s chapter proceedings (commander’s notification and initiation, chain of command’s recommendations and the separation authority’s decision), are not available for the Board to review. However, his service record contains a DD Form 214 that shows: (1) He was discharged on 25 March 1980, under the provisions of chapter 14, paragraph 14-33b, Army Regulation (AR) 635-200 (Personnel Separations Separation Documents) with a under other than honorable conditions discharge. (2) He completed 1 year, 9 months and 3 days of active service, with lost time on 28 November 1979 and on 22 April 1979. He was assigned Separation Code JKA (Misconduct - Frequent Incidents of a Discreditable Nature with Civil or Military Authorities). (3) He was awarded or authorized Parachute Badge, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and Expert Marksmanship Qualification Badge with Rifle Bar (M-60). e. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations 4. By regulation, members are subject to separation for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized. 5. In reaching its determination, the Board can consider the applicants 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 short term of honorable service completed prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of separation 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. 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 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 1-9e (General Discharge) states 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. c. Chapter 14 -12c (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized. 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. ABCMR Record of Proceedings (cont) AR20180003936 3 1