ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 July 2019 DOCKET NUMBER: AR20180007681 APPLICANT REQUESTS: upgrade of his under other than honorable discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored 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, in effect, he witnessed an enlisted man assaulting his corporal. The guy threatened to throw the applicant out of a two-story window. 3. The applicant provided a self-authored statement detailing his account of the events that led up to his request for his discharge with an under other than honorable character of service, to be changed to honorable. He states: a. He was standing in the hallway when an enlisted man of another nationality opened his door and started hitting his sergeant (SGT). When the fight was over the enlisted man grabbed him (the applicant) by the arm and said “you had better go my way” and pushed him. At the trial, the enlisted man and the sergeant major (SGM) were present. The SGM asked the applicant to explain what happened. He told him the enlisted man was beating up the SGT. b. After sharing the details with the SGM, the enlisted man and two of his friends tried to enter the applicant’s room. He states he could hear them whispering and they tried to obtain a key to the room from the hall monitor and planned to throw the applicant out of the window of a two-story building. c. The applicant states he stayed in his room with the door locked at all times after the event. He started staying in his room with his two roommates, Kiffmeyer, and Andy. He discovered his roommates planned to steal alcohol from the enlisted club (ECO Club). The applicant states he never saw the inside of the club. He shares he just walked over to his room and learned the next day that his roommates had stolen a large amount of alcohol. Lastly, the applicant states he never stole anything, so he waited for his roommates to go in and he ran to his room. 4. A review of the applicant’s service record shows: a. He enlisted in the Arizona (AZ) Army National Guard (ARNG) on 18 August 1975. b. He was involuntarily separated on 2 October 1977 and ordered to active duty under the provisions of Army Regulation (AR) 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), paragraph 12, due to multiple periods of unexcused absence from unit training assemblies within a one-year period. He was issued a NGB Form 22 (Departments of the Army and the Air Force National Guard Bureau Report of Separation and Record of Service) that credited him with 2 years 1 month, and 15 days of service. He received an honorable character of service. c. On 3 October 1977, the applicant was transferred to active duty at the US Army Reception Station, Fort Bliss, TX. d. DD Form 458 (Charge Sheet), dated 27 February 1978, reflects the applicant was charged with: * one specification of stealing two stereo speakers (valued at about $430.00) and 51 bottles of liquor (valued at about $139.49) from the non-commissioned officer (NCO) club on or about 22 January 1978 * one specification of unlawfully enter the NCO club, property of the U.S. Government, with intent to commit larceny, a criminal offense on or about 22 January 1978 e. Also on 27 February 1978, the applicant’s commander recommended the applicant receive a trial by special court-martial empowered to adjudge a bad-conduct discharge (BCD). His intermediate commanders provided endorsements, on 2 March and 10 March 1978, in agreement with the recommendation of applicant’s immediate commander. f. On 16 March 1978, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service. In his request for discharge, he acknowledged his understanding that: * by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of an undesirable discharge * he acknowledged he understood that if his discharge request was accepted he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he was advised he could submit any statements he desired in his own behalf * he elected not to submit any statements in his behalf g. On 20 March, 21 March, and 2 April 1978, respectively, his commander and intermediate commanders endorsed the applicant’s request and recommended him for discharge, for the good of the service in accordance with AR 635-200, chapter 10. h. On 4 April 1978, the separation authority approved the applicant's request for discharge and ordered him discharged under the provisions of AR 635-200, chapter 10, for the good of the service, in the grade of private/E-1, and issued an Under Other Than Honorable Conditions Discharge Certificate. i. The applicant was discharged from active service on 18 April 1978 under the provisions of AR 635-200, chapter 10, for the good of the service-in lieu of court martial. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged in the rank of private/E-1 and his service was characterized as under other than honorable conditions. He completed 6 months and 16 days of active service during this period and had no lost time 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation (AR 635-200), a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 7. By regulation (AR 135-91), in part, provides, a member fails to participate satisfactorily when he accrues in any 1-year period a total of five or more unexcused absences from scheduled unit training assemblies will be ordered to active duty for a period which, when added to his prior service on active duty, active duty for training, annual training, full-time training duty, will total 24 months. 8. The Board should consider the applicant’s submission 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 were 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 character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to multiple offenses of a criminal nature, 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, 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. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. Army Regulation AR 135-91, paragraph 12, in part, provides, a member fails to participate satisfactorily when he accrues in any 1-year period a total of five or more unexcused absences from scheduled unit training assemblies will be ordered to active duty for a period which, when added to his prior service on active duty, active duty for training, annual training, full-time training duty, will total 24 months. 4. 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// ABCMR Record of Proceedings (cont) AR20180007681 5 1