ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20180005478 APPLICANT REQUESTS: his under other than honorable conditions discharge upgraded to an honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * Nine Character Letters * 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 he felt he was treated unfairly by his command and racism was an issue, which he felt was a driving force behind his removal. Now he is unable to receive benefits for issues that begun in the military, as part of his service to his country. 3. The applicant provides: a. Nine character letters comprised of family, friends and co-workers who all attest of his positive attitude and his relentlessness to help others. His dedication as a mentor for the W.W. Woolfolk Boys Club in Atlanta, Georgia is known throughout the community and he is known for many great works. He has proven to be a man who is dependable, compassionate and who has an excellent rapport with people of all ages. b. A copy of his DD Form 214, which captures his time in the service from 28 December 1981 to 23 November 1983. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 28 December 1981. b. He accepted nonjudicial punishment on or 10 March 1983, for disobeying a lawful order from a superior noncommissioned officer. c. On 28 September 1966, he was convicted by Special Court-Martial Order (SCMO) #20 for on or about 15 May 1983, commit an assault upon Private X__, United States Army, by cutting said Private X__ on the shoulder, with a dangerous weapon, to wit: a knife. The court sentenced him to be reduced to Private/E-1 and forfeiture of $191.00 pay for six months. d. On 4 November 1983, the applicant's commander advised him in writing of his intent to separate the applicant under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14 (Separation for Misconduct), paragraph 14-12b (A Pattern of Misconduct). e. On 4 November 1983, the applicant acknowledged receipt and consulted with counsel. Following consultation with legal counsel, he understood his rights and acknowledged the following: * he understood if this discharge 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 understood that he may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued * 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 f. On 7 November 1983, consistent with the chain of command recommendations, the separation authority approved the discharge and directed he be issued an Other Than Honorable Conditions Discharge. g. On 23 November 1983, he was discharged, under the provisions of AR 635-200, Chapter 14 – 12B, misconduct- patterns of misconduct. He completed 1 year, 10 months and 26 days of net active service this period. He was awarded or authorized the: * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Qualification Badge with Hand Grenade Bar 5. On 20 May 1997, the applicant applied to the Army Discharge Review Board for an upgrade of his character of service. After considering the evidence, his request was denied. 6. By regulation, action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. 7. The Board should 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 relief was not warranted. Based upon the serious, violent nature of some of the misconduct which led to the applicant’s separation, 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 separation of enlisted personnel. a. Chapter 3-7a (Honorable Discharge) 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 clearly inappropriate. b. Chapter 3-7b (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 states action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, Chapter 14-12b. 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) AR20180005478 4 1