ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 July 2019 DOCKET NUMBER: AR20180008052 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 the incident which led to his discharge was not his fault. A fellow Soldier called him the “N” word and all that went through his mind at the moment was to hit him and he did. He was twenty years old at the time and is remorseful for his behavior. He was offered 20 years in prison, of which he felt was wrong. He would truly appreciate any help in getting his discharge upgraded. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 26 December 1973. b. He served overseas in Korea from 05 October 1974 until 04 November 1975. c. On 2 February 1976, he departed his unit in an absent without leave (AWOL) and did not return to military control until 8 February 1976. d. On 9 February 1976, he accepted non-judicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 2 February 1976 until 8 February 1976. e. On 12 February 1976, he accepted NJP, under the provisions of Article 15, UCMJ, for violating a lawful general regulation, to wit: wrongfully having in his possession an undetermined amount of marijuana. f. His record is void of a DD Form 458 (Charge Sheet). This form would have indicated the court martial charge(s) and specification(s) which were preferred. 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 (Report of Separation from Active Duty). g. He was discharged on 6 May 1976. His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions. It also shows he completed 2 years, 4 months and 5 days of total active service with 6 days of lost time. h. He was awarded or authorized the National Defense Service Medal. 4. 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. 5. By regulation,(AR 635-200) an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon a pattern of misconduct, a lack of character evidence submitted by the applicant showing he has learned from the events leading to his separation, as well as a lack of corroborating evidence to the applicant’s statement, the Board concluded there was insufficient evidence to show an error or injustice was present which would warrant making a change to the characterization of service. 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, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable) provides 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) provides 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. When a member's service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality or security, the specific basis for such separation, will be included in the individuals military personnel record. c. Chapter 10 of that regulation provides, in pertinent part, an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 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) AR20180008052 3 1