IN THE CASE OF: BOARD DATE: 13 December 2019 DOCKET NUMBER: AR20180005822 APPLICANT REQUESTS: a. Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20040001995 on 10 February 2005. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. b. That an investigation be conducted to determine the source of incorrect information regarding the false allegation of his sleeping on guard duty and his reporting to guard duty late. c. That the Board not harbor any animosity from the listed incidents in his statement for which he had already been punished. d. That he be furnished a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), as he does not have a copy at this time. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 22 March 2018, with self-authored statement FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20040001995 on 10 February 2005. 2. The applicant states the previous ABCMR decision was based on wrong information and he believes it was made in bad faith. In effect, he further states: a. He entered into the Army in 1979, for training as a Green Beret Special Forces Medic (military occupational specialty (MOS) 91B), which is a combat medic. He was sent to Fort Sam Houston, Texas for medical training. While there, he was involved in an incident of "horse playing" and he was punched in the eye by a private who had a cast on his hand and wrist. He went to the infirmary because he could not see out of his eye for months. b. He was then sent to Fort Polk, Louisiana and during his time there, he was participated in a mission called "Border Star 81" and during that mission, he was in a coma for approximately two weeks and was hospitalized at Fort Hood, Texas. After returning to Fort Polk, he went to school and received his General Educational Diploma. He had a verbal altercation with an enlisted Soldier in the rank of specialist four (SP4), who "got with" a captain and made a "factious lie" about him assaulting the SP4. The military police (MPs) were called and after they determined that there with no sign of assault on either him or the SP4, the MPs left. After one or two weeks had passed, the captain and the SP4 filed false charges of assault to the Judge Advocate General or Provost Office and he was "railroaded" with a court-martial and was sentenced to thirty days of confinement. c. He was sent to Fort Riley, Kansas where he was retrained in MOS 13B. While he was at Fort Riley, he received a UOTHC discharge. 3. The applicant enlisted in the Regular Army on 26 September 1979. He completed MOS training as a cannon crewman (13B10). 4. The applicant accepted nonjudicial punishment (NJP) on 8 April 1980, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for sleeping on guard duty on or about 5 April 1980. 5. The applicant accepted NJP on 16 May 1980, under the provisions of Article 15 of the UCMJ, for striking a fellow Soldier on the head with his hand on or about 12 May 1980. 6. General Court-Martial Order Number 46, issued by Headquarters, 5th Infantry Division Artillery, Fort Polk, Louisiana on 14 August 1981, shows the applicant was convicted on 13 August 1981 of assaulting his superior NCO, on or about 3 August 1981, and of wrongfully communicating a threat to his superior NCO, on or about 3 August 1981. He was sentenced to confinement at hard labor for 30 days. 7. The applicant accepted NJP on 18 September 1981, under the provisions of Article 15 of the UCMJ, for failure to obey a lawful order not to leave the area without permission. 8. Training Progress Notes dated 22 September 1981, shows the applicant received a Unit Commander's reprimand for fighting and the officer in charge indicated that he failed to make any progress in the program due to his continual misconduct and lack of response to counseling or disciplinary actions. 9. The applicant's commander notified the applicant on 23 September 1981 that he was being recommended for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, for misconduct. After consulting with counsel on 24 September 1981, the applicant acknowledged receipt of the notification and elected not to submit a statement in his own behalf. 10. The applicant's commander formally recommended the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-33, for misconduct. The separation authority approved the recommendation for discharge on 5 October 1981 and directed that the applicant be furnished a UOTHC Discharge Certificate. 11. The applicant was discharged on 9 October 1981, under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct – frequent incidents of a discreditable nature with civil or military authorities. His DD form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as UOTHC. 12. The Army Discharge Review Board determined that the applicant's discharge was both proper and equitable on 25 March 1983. 13. The ABCMR denied the applicant's request for an upgrade of his discharge on 10 February 2005. 14. As new evidence not previously considered, the applicant provides a self-authored statement contending that the ABCMR's previous decision was based on incorrect information and made in bad faith and the allegations of misconduct for which he was punishment are untrue. 15. By regulation, the Board considers a case based on the evidence of record and independent evidence it is provided. The Board is not an investigative body and the burden of proving an error or injustice rests with the applicant. The Board should consider the applicant's statement and provided evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found no evidence of in-service mitigation for the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The applicant is advised that by policy, the Board is not an investigative body and the burden of proving an error or injustice rests with the applicant. The Board is obligated to make decisions, based on evidence and facts in the records, in a fair and equitable manner. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 AR20040001995 on 10 February 2005. The Board recommends that applicant be provided a copy of his DD Form 214 when this decision is sent to him. 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 NOTE(S): Not Applicable REFERENCES: 1. Army Regulation Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 be clearly inappropriate. 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. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. 2. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005822 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180005822 6 ABCMR Record of Proceedings (cont) AR20180005822 5