ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20180004812 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge and to appear before the Board 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 one night of drinking does not reflect the person that he is. He served honorably for 3 years and one night he flipped, because his baby brother had died a few months earlier and he became an alcoholic after it happened. He started drinking excessively after his brothers’ death. b. There is no error. He took the undesirable discharge, in lieu of a court-martial and he should have just have taken his medicine and dealt with a court-martial, but he did not and has had to live with that for the past 42 years. He feels he has paid the price and is requesting an upgrade. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 4 October 1972 and reenlisted on 23 May 1974 and again on 30 August 1974. b. His first two enlistments he received honorable discharges. c. He served overseas in Germany from 29 November 1974 until 2 September 1975. d. On 22 July 1975, he accepted non-judicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for behaving himself in a disrespectful manner towards his superior commissioned officer on 20 July 1975. e. On 29 July 1975, he accepted NJP, under the provisions of Article 15, UCMJ, for behaving in a disorderly manner on 7 July 1975. f. His record is void of a DD Form 458 (Charge Sheet). This form would have indicated the court martial charge(s) and specification(s) which were preferred. The facts and circumstances surrounding the applicant’s discharge are not available for the Board to review. However, his record contains a DD Form 214 (Report of Separation from Active Duty). g. He was discharged on 3 September 1975. 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 11 months, and 27 days of net active service this period with 7 days of lost time and 1 year, 10 months and 19 days of prior active service. h. He was awarded or authorized the National Defense Service Medal, Parachute Badge and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 4. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires 5. By regulation,(AR 635-200) an individual who has committed an offense or offenses, the punishment for 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. 6. 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. The reason for the court-martial charges were not available for review. Based upon his voluntary request for discharge in lieu of court-martial, the Board determined he admitted guilt to a criminal offense in which his command preferred charges that could have resulted with a BCD. Additionally, based on his offense resulted in his separation, as well as his 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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. 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) provides that an honorable discharge Is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment of current period of service with due consideration for the member's age, length of service, grade and general aptitude. b. Paragraph 1-9e (General) provides that A general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member's service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality or security, the specific basis for such separation, will be included in the individuals military personnel record. c. Chapter 10 of that regulation provides, in pertinent part, an individual who has committed an offense or offenses, the punishment for 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 request for discharge may be submitted at any time after court-martial charges are preferred against him, 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. 4. 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) AR20180004812 2 1