ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 October 2019 DOCKET NUMBER: AR20180005716 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Coversheet 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 AR2004105748 on 2 December 2004. 2. The applicant states while stationed at Fort Riley, KS he was attacked by members of the KKK on the military base. He feared for his life after this traumatic incident and went absent without leave (AWOL). He believes he was never provided any legal counseling prior to his discharge and would like to get his discharge upgraded. 3. A review of the applicant's service record shows: a. He enlisted in the Regular Army on 12 April 1977. b. He accepted nonjudicial punishment on/for * 4 November 1977, for being absent without leave (AWOL) 17 October 1977 to 4 November 1977 * 4 January 1978, for being AWOL from 19 December 1977 to 20 December 1977 * 20 March 1978, for wrongfully possessing marijuana and failing to be at his place of duty at the appointed time; his punishment included reduction to private/E-1 * 4 May 1978, for being AWOL from 1 May 1978 to 3 May 1978 * c. On 5 April 1978, he was convicted by summary court-martial for one specification of breaching restriction; his sentence included confinement at hard labor for 20 days and forfeiture of $150 for one month. d. On 17 July 1978, he was convicted by summary court-martial of one specification of being AWOL from 11 May 1978 to 20 June 1978 and two specifications of failure to obey a lawful order. His sentence consisted of confinement at hard labor for 20 days and forfeiture of $50 pay per month for one month. e. His record is void of his commander’s notification of his intent to initiate a Chapter 14 discharge for misconduct, however on 26 July 1978, the applicant signed an acknowledgement from his commander notifying him of his intent to initiate action to effect his discharge under the provisions of AR 635-200, chapter 14, for misconduct (patterns of misconduct). Specifically, for frequent incidents of a discreditable nature. f. 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 but he did request consideration of his case by a board of officers and to also appear before that board g. His chain of command recommended approval of his chapter 14 discharge with the issuance of an under other than honorable conditions discharge. h. His record is void of the separation authority’s approval, however, according to his DD Form 214 (Report of Separation from Active Duty), he was discharged on 23 August 1978. His DD Form 214 shows he was discharged under the provisions of AR 635-200, Chapter 14-33b, misconduct-frequent incidents of a discreditable nature with civil or military authorities. His service was characterized as under other than honorable conditions. He completed 1 year, 1 month, and 3 days of active service, with 99 days of lost time. 4. The applicant applied to the Army Discharge Review Board (ADRB) for a discharge upgrade. On 2 April 1981, the ADRB determined the discharge was both proper and equitable and voted to deny relief. 1. 5. By regulation, Soldiers with a record of frequent incidents of a discreditable nature with civilian or military authorities may be eliminated for misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 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 reviewing the application and all supporting documents, the Board found relief was not warranted. In reaching its determination, the Board did consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. Board member read the previous request and the current request. Based upon a review of the evidence in the record, the Board noted that in his previous request, he did not mention any attack or provide the evidence of such attack. Without proper evidence to corroborate the current statement of the applicant, the Board concluded there was insufficient evidence to demonstrate such events. The Board noted his drug use, court-martial convictions, NJP, and overall service. Based upon the short term of honorable service completed prior to a pattern of misconduct, the Board concluded the characterization of service received at the time of discharge 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 to amend the decision of the ABCMR set forth in Docket Number AR2004105748 on 2 December 2004. 11/12/2019 X CHAIRPERSON Signed by: 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) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable) 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 (General) 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. Paragraph 14-33b(1), of the version in effect at the time, provides members are subject to separation under the provisions of this section for patterns of misconduct related to frequent incidents of discreditable nature with civil or military authorities. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. a. 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. Nothing Follows