ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 June 2019 DOCKET NUMBER: AR20180006804 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD form 293 (Application for the Review of Discharge * DD Form 214 (Report of Separation from Active Duty) * Character Reference 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 that he is requesting to have his under other than honorable condition discharge upgraded because he got involved with a bad, rough crowd, was drawn into the bad behavior not befitting of a Soldier, and did not know what he was doing. His discharge was based on one incident in his 22 months of service and he had an unblemished record up until then and he regrets what happened. During the investigation he cooperated with the Criminal Investigative Division and he received an immediate discharge. He now has remorse for his actions and has gone through rehabilitation and has been clean for a long time. 3. The applicant provides a letter of character reference from X____ who states that he has known the applicant for 6 years. The applicant is always prompt and on time. He has charged his character from that of the past. He is no longer wild and unruly and obeys the laws of the land. He works hard to fit into society and adhere to the rules of that society. The reason for his writing this character reference for the applicant is to attest to the applicant’s good character, commitment and involvement in the community. He looks out for and helps his neighbors, he is very industrious and a hard worker. The applicant is very family oriented, he takes care of his wife, children and grandchildren in many ways. When he works for the church he is faithful, takes advise well and is always gracious. He is kind and does what he is asked to do and is a pleasure to work with. He has been a great help to the church with maintenance and contributing to the many decisions of the church. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 2 May 1977. He was advanced to private/E-2 on 2 November 1977. b. He served in Germany from 5 November 1977 to 16 March 1979. He was advanced to private first class/E-3 on 1 June 1978 and specialist four /E-4 on 1 December 1978. He completed the requirement for his General Education Diploma in 1978. c. 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, which outlines his reason for separation. d. He was reduced in grade to private/E-1 on 21 February 1979. e. He was discharged from active duty on 19 March 1979 with an under other than honorable conditions discharge. His DD Form 214 shows he completed 1 years, 10 months, and 18 days of active service. It also shows in: * item 8c (Authority and Reason) Army Regulation (AR) 635-200 (Personnel Separations), chapter 10 (For the Good of the Service) * item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 5. By regulation, AR 635-200 (Personnel Separations – Enlisted Personnel) A member who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable discharge certificate is normally appropriate for a member who is 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 there is insufficient evidence to grant relief. The applicant’s contentions and letter of support was 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 evidence of post-service achievements for the Board to consider. Based upon the lack of information in the record concerning the misconduct which led to the separation, the Board agreed that there was insufficient evidence to show that an error or injustice was present which would warrant making a change to the characterization of service at the time. If the applicant can provide greater clarity as to what misconduct resulted in the separation and that he has learned and grown from that misconduct through character evidence, the Board recommends the applicant submit for reconsideration at a later date. 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) 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time, sets forth the basic authority for the separation of enlisted members. a. Paragraph 1-13a (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 10 (Discharge for the Good of the Service) of this regulation states a member who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the member, or where required, after referral, until final action by the court-martial convening authority. An under other than honorable discharge certificate is normally appropriate for a member who is discharged for the good of the service. However, the separation authority may direct a general discharge certificate, if such is merited by the member’s overall record during the current enlistment. 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) AR20180006804 5 1