ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 July 2019 DOCKET NUMBER: AR20180007891 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) * DD Form 214 (Report of Separation From Active Duty) 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 AR20140005862 on 17 November 2014. 2. The applicant states: a. He was subjected to extreme racism during his military career. He admits he lacked maturity, commitment, order and respect. However, the incidents that led to his separation were due, in part, to his battle with alcoholism. b. He believes his discharge was inequitable, because he was extremely immature and exposed to prejudicial behavior. He maintains his characterization of service is unjust, considering he had one isolated incident in over 24 months of military service. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 23 January 1973. b. He accepted nonjudicial punishment (NJP), Article 15 of the Uniform Code of Military Justice (UCMJ) on 16 August 1974 for: * willfully disobeying a lawful order to get out of bed * failure to go at a prescribed time to an appointed place of duty c. On 26 November 1974, the applicant was convicted by a summary court-martial for: * one specification of being absent without leave on or about 22 September 1974 to 23 September 1974 * five specifications of failing to go to a prescribed time and an appointed place of duty d. The court sentenced him to the reduction to the grade of Private 2/E2, forfeiture of $150 pay and 30 days of hard labor without confinement. e. He accepted NJP, Article 15 of the UCMJ on 10 December 1974 for willfully disobeying a lawful order to get out of bed. f. He accepted NJP, Article 15 of the UCMJ on 22 January 1975 for failure to go at the time prescribed to an appointed place of duty. g. He accepted NJP, Article 15 of the UCMJ on 11 March 1975 for two specifications of failure to go at the time prescribed to an appointed place of duty. h. According to his DD Form 458 (Charge Sheet), court-martial charges were preferred against the applicant on 27 March 1975 for: * one specification of being absent without leave from 21 March 1975 to 25 March 1975 * three specifications of disobeying a lawful order to get on his feet and to go to the barracks to obtain his weapons card * one specification of assault by trying to hit his superior non-commissioned officer with his web gear * one specification of assault by swinging his fists at his superior commissioned officer * one specification of wrongfully communicating a threat to his superior non- commissioned officer i. He consulted with legal counsel on 29 April 1975, he elected not to submit a statement on his own behalf and subsequently, requested discharge under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service), in effect at the time. He acknowledged: * he was guilty of the charge against him or of a lesser included offense which also authorizes the imposition of a bad conduct or dishonorable discharge * he did not desire further rehabilitation or desire to perform further military service * if his request was accepted, he may be discharged under conditions other than honorable * he may ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a Veteran under both Federal and State laws * he can expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge j. Consistent with the chain of command’s recommendation, on 27 May 1975, the separation authority approved the applicant’s request for separation under the provisions of chapter 10, AR 635-200, Chapter 10 (Discharge for the Good of the Service), in effect at the time. He directed the issuance of an Undesirable Discharge Certificate. k He was discharged from active service on 9 June 1975. His DD Form 214 shows he was discharged with an under other than honorable conditions characterization of service. He completed 2 years and 4 months of net active service with 17 days of lost time. 4. The applicant applied to the Army Discharge Review Board for an upgrade of his discharge, which was denied by the board on 15 May 1979. 5. By regulation, a member who has committed an offense or offenses, which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally is appropriate for a Soldier discharged for the good of the service. 6. 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 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 was remorseful with his application for the events leading to his separation. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the pattern of misconduct, which included multiple offenses of a violent nature against other Soldiers, 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states that an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) states that a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation provides procedures for separating members who have committed an offense or offenses, UCMJ 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 discharged for the good of the service. 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 BCMRs 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, BCMRs 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) AR20180007891 5 1