ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20180007113 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Reference Statement 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 is requesting upgrade because he believes the charges were too strict. He only had five to six months on his enlistment at the time for the incident. He regrets what happened, but he was young at the time of the incident. His health is growing worst, he was a military police officer and also airborne. He had about 40 to 50 jumps to his credit and is very proud of that. He is requesting an upgrade so he can get his health issues treated. 3. The applicant provides a reference letter from his neighbor who states the applicant has been his neighbor for twelve years. He is a family man, church going and work in the church as an associate minister. He has been very helpful to not only him but to other neighbors as well. He is willing to lend a hand when needed. He is a great family man, he loves his children, grandchildren and extended family. He teaches Sunday school, he drives the church van to pick up members who need a ride. He helps with the choir and preach when needed. He shows concern about others and their well-being. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army 19 January 1973. b. He accepted nonjudicial punishment under Article 15 on/for: * 9 August 1973, failing to go at the time prescribed to his appointed place of duty, he was reduced to private/E-2 * 16 August 1973, failing to go at the time prescribed to his appointed place of duty * 12 October 1973, failing to go at the time prescribed to his appointed place of duty, he was reduced to private/E-1 * 14 January 1974, absent without leave (AWOL) * 14 August 1974, failing to go at the time prescribed to his appointed place of duty, he was reduced to private/E-2 (suspended for 30 days) c. On 9 October 1974, he was convicted by a special court-martial order of one specification of committing an assault upon a fellow Soldier, by cutting him on the shoulders with a broken bottle and did thereby intentionally inflict grievous bodily harm upon him, to wit several deep lacerations on the back of his shoulders. The court sentenced him to reduction to PVT/E-1 and confinement at hard labor for 2 months. d. On 15 October 1974, the convening authority approved the sentence but suspended for 4 months, the confinement at hard labor for 2 months. e. On 9 May 1975, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet), indicates he was charged with one specification of being AWOL from 14 April 1975 to 18 April 1975 and from 23 April 1975 to 7 May 1975. f. On 22 May 1975, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). In his request for discharge, he acknowledged he understood: * if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate * he could be deprived of many or all Army benefits and she could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge * he elected not to submit statement in his behalf g. On 4 June 1975, his chain of command recommended approval with the issuance of an Undesirable Discharge Certificate. h. On 12 June 1975, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200 and ordered the applicant furnished an Undesirable Discharge Certificate. i. He was discharged from the Army on 1 July 1975. His DD Form 214 (Report of Separation from Active Duty) show he was discharged under the provisions of chapter 10 of AR 635-200 with under other than honorable conditions characterization of service. He completed 2 years, 4 months, and 16 days of active service, with 27 days of lost time. It also shows he was awarded or authorized: * Marksman Marksmanship Qualification Badge with the Rifle Bar (M-16) * National Defense Service Medal * Parachute Badge 4. By regulation, an individual 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 Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 5. 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 relief is not warranted. The applicant’s contentions and reference letter 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. The Board acknowledges his post-service character. However, based upon the short term of honorable service completed prior to a pattern of misconduct, which included serious violent behavior towards others, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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, provides for the separation of enlisted personnel a. Paragraph 1-13 (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 obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. b. Paragraph 1-13b (General discharge) 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. c. Paragraph 1-13c (Under other than honorable conditions) A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for security reasons, or for the good of the service d. Paragraph 11-2 (Bad Conduct Discharge ) A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and ABCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, ABCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180007113 4 1