ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 January 2019 DOCKET NUMBER: AR20180005492 APPLICANT REQUESTS: reconsideration of his earlier request (Docket number AR20080017828) for an upgrade of his under other than honorable conditions discharge to a general. APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 AR20080017828 on 10 February 2009. 2. The applicant states there was never representation given to support him in the decision of an incident that occurred while in the military. He was railroaded into accepting a bad conduct discharge and during the period of infraction, he was a young man (age 24). He was also in the National Guard from 1978 until 1980 without any incidents. However, many years have passed since his discharge, and he is still concerned about his discharge characterization. In addition, he has suffered without the opportunity to have benefits, and he truly apologizes for his conduct, but he was young at the time. 3. A review of the applicant’s service record show he enlisted in the Regular Army 27 February 1980 and was assigned to 1st Battalion, 41st Infantry Regiment, Fort Hood, Texas. While at Fort Hood, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: * 8 August 1980, for failure to obey a lawful order to fall out of PT formation * 13 November 1980, for being disrespectful in deportment toward a noncommissioned officer, failing to pay attention during a meeting and leaving the meeting while it was still being conducted * 23 February 1981, for failure to obey a lawful order and come to the position of parade rest 4. On 26 February 1981, the applicant was convicted by a summary court martial for willfully disobeying a lawful order from a commissioned officer and for willfully disobeying a lawful order from a noncommissioned officer. 5. On 9 March 1981, the applicant’s commander recommended a bar to reenlist and it was approved. 6. On 2 April 1981, the applicant received NJP for being absent without leave on 24 March 1981. 7. On 9 April 1981, the applicant was convicted by a summary court-martial for willfully disobeying a lawful order from a noncommissioned officer and dereliction of duty. 8. On 14 August 1981, the applicant was convicted, by a special court-martial for assaulting a noncommissioned officer and willfully disobeying a lawful order from a noncommissioned officer, and being disrespectful in language towards a noncommissioned officer. 9. The applicant’s record is void of a separation packet. 10. The applicant was discharged on 7 October 1981, under the provisions of Army Regulations (AR) 635-200 (Personnel Separations - Enlisted), para 14-33b (1), due to misconduct- frequent incidents of a discreditable nature with civilian and military authorities. His DD Form 214 shows he completed 1 year and 4 months of net active service. Item 29 (Dates of Time Lost During This Period) shows 26 February 1981 through 19 March 1981; 9 April 1981 through 30 April 1981 and 15 July 1981 through 10 September 1981. 11. 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. In determining whether to grant relief on the basis of 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. 12. The applicant provides in his application, an apology for his actions and his lack of maturity at the time. The Board should consider the applicant's submission in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that relief was not warranted. The Board determined that based upon the short time of military service completed prior to misconduct beginning and the multiple forms of misconduct, that the characterization of service received by the applicant was appropriate. BOARD VOTE: Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant :X X X Deny 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. ___________X________________ Chairperson 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. ADMINISTRATIVE NOTES: 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 given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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 2. Chapter 14, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A general discharge was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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.