ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20180007981 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Report of Separation from Active Duty) 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 asking that the injustice of his discharge be corrected. For during that time it was not favorable for him at that time in the 1970’s. He remembers being at that fight but no one got hurt during the fight. When an officer came in and he was named to have started that fight. He was locked up and transferred to Fort Riley, KS for about 2 months and was discharged from that incident. He does not recall anything else during that time. There was no reason for him to be discharge for that incident it was unjust. He knows it has been many years but he is asking for an upgrade at this time for benefits that he needs and his children as they go on in life. 3. The applicant provides his DD Form 214 that shows he was discharged on 14 August 1975 with an Under Other Than Honorable Conditions character of service. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 19 December 1973. b. He accepted non-judicial punishment under Article 15 on/for: * 20 May 1974, without authority fail to go at the time prescribed to your appointed place of duty * 30 October 1974, steal one cassette tape, one roll of film the property of the Fort Bragg Main Post PX, of a value of about $13.99 * 4 February 1975, without authority fail to go at the time prescribed to your appointed place of duty willfully disobey a lawful command * 25 February 1975, without authority fail to go at the time prescribed to your appointed place of duty * 8 May 1975, without authority fail to go at the time prescribed to your appointed place of duty c. On 12 June 1975, he was convicted by a special court-martial for one specification of unlawfully striking Private/E-2 Te__ Sh__ on the jaw and on the chest with his fist. The court sentenced him to reduction to private/E-1, forfeiture of $229 per month for six month, and confinement at hard labor for six months. d. On 26 June 1975, the convening authority approved and ordered the sentence executed, however, the execution of that portion thereof adjudging confinement at hard labor in excess·of 90 days was remitted. e. On 5 August 1975, MSG Tr__ Ma__ submitted DA Form 2496 (Disposition Form) a letter of appreciation on behalf of the applicant stating it is with pleasure that he take this opportunity to extend his appreciation for a job well done. On 30 July 1975, the applicant was on temporary duty with the Food Advisor, during this time he did an outstanding job and conducted himself in an outstanding manner. It is his concern that the applicant be considered to stay in the Army. He would sincerely appreciate it if the command take this opportunity to let him remain in the Army. f. The applicant’s record is void of any separation documents. However, his record contains: (1) Special Orders Number 157, issued by Headquarters, Retraining Brigade, Fort Riley, KS, on 13 August 1975, directed the applicant be discharged with no authority. Effective date of discharge is 14 August 1975 with an Undesirable type of discharge directed. Also stated enlisted member requested board action. (2) DD Form 214 that shows he was discharged on 14 August 1975, under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-5a(1) with an Under Other Than Honorable Conditions characterization of service. He was assigned Separation Code JLB (unsuitability - Discreditable Incidents - Civilian or Military). He completed 1 year, 5 months, and 24 days of active service. He was awarded the National Defense Service Medal. 5. By regulation, enlisted Soldiers could be eliminated for unfitness or unsuitability. A Soldier could be separated for unsuitability whose record shows apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively or frequent incidents of a discreditable nature with civil or military authorities. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the short term of service completed prior to a pattern of misconduct, some of which involved violent behavior towards others, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service. 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 record, 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, sets for the basic authority for separations of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states 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 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. When a member’s service is characterized as a general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Paragraph 13-5a(1) states frequent incidents of a discreditable nature with civil or military authorities. 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. ABCMR Record of Proceedings (cont) AR20180007981 2 1