ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20180008891 APPLICANT REQUESTS: * an upgrade to his under other than honorable conditions discharge * restoration of rank * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Applicant for the Review of Discharge from the Armed Forces of the United States) * DD Form 149 (Application for Correction of Military Record) * self-authored statement * discharge packet 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 (ABCMR) 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 his discharge was unjust, as well as stripping him of all his rank he worked very hard to get. He was never told about his discharge, no one ever asked him what happened and he still does not know his charges. He felt he was simply railroad. 3. The applicant provides: a. A copy of his discharge packet, which he received prior to separation. b. A self-authored statement, which states in summary that his family arrived in Hawaii and he asked his wife for something and she told him to look in her purse and get it. He went into her purse, and the first thing he came upon was a 10 page letter from some guy she was seeing back in South Carolina. He confronted her and they immediately began to argue. They went back and forth and she became very angry and punched him in the face, she snatched the letter out of his hands and ripped it into little pieces. He then punched her in the arm. He admitted he was wrong, no matter what she did to him. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 18 June 1981. He had immediate reenlistment on 23 April 1985 and 5 October 1990. He was last assigned to Charlie Battery, 3rd Battalion, 7th Field Artillery, Schofield Barracks, HI, from 12 July 1991 to 20 February 1992. b. His military personnel records is void of the request for separation under Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10 for the good of the service – in lieu of trial by court-martial, and the specific facts and circumstances concerning the events that led to his discharge. c. After consultation with counsel, the trial defense services, Schofield Barracks, HI, by memorandum, on 27 January 1992, to the commander of the 25th Infantry Division (Light), Schofield Barracks, HI stated that it was no longer practical for the applicant to continue in the Army. He was an intense individual who had difficulty controlling his emotions, a federal conviction would not have served in the interests of justice and he requested approval of the Chapter 10. d. On 16 January 1992, the applicant was counseled by Captain X___ X___ X___ on the approval of his Chapter 10 request, and his administrative reduction to Private/E-1. e. The applicant’s immediate and intermediate commanders recommended separation action against the applicant under the provisions of AR 635-200, Chapter 10 for the good of the Service - in lieu of trial by court martial. They cited that the applicant had a track record of unacceptable performance, behavior, and his apathetic attitude toward the command, the community and the Army. f. On 15 January 1992, consistent with the applicant’s request and his chain of command recommendations the separation authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 10, and directed that he be reduced to the lowest enlisted grade and furnished an under other than honorable conditions discharge. g. The applicant was discharged on 24 February 1992. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service – in lieu of trial by court martial with a character of service of under other than honorable conditions. He completed 10 years, 8 months and 3 days of net active service this period. It also shows he was awarded or authorized the: * Army Achievement Medal * Good Conduct Medal (3rd Award) * Noncommissioned Officer Professional Development Ribbon with/numeral 2 * Drill Sergeant Identification Badge * Army Service Ribbon * Overseas Service Ribbon with numeral 2 * Expert Marksmanship Badge Rifle, M-16 5. The Army Discharge Review Board (ADRB), by letter, on 18 January 1996, to the applicant in response to his request for an appeal to his previously denied request to change his character and/or reason of his discharge. The ADRB denied his request for an appeal and advised the applicant that he may reapply to the ADRB for a personal appearance hearing and/or apply to the ABCMR. 6. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 7. By regulation, a member who has committed an offense 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. 8. By AR 600-200, paragraph 6-11, states when the separation authority determines that a Soldier is to be discharged from the service under than honorable conditions, he or she will be reduced to the lowest enlisted grade. 9. 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 it could reach a fair and equitable decision in the case without a personal appearance by the applicant. Additionally, it determined that based upon the repeated offenses of domestic violence towards his spouse that the characterization of service received at the time of separation was appropriate. Because an automatic reduction in rank to E1 accompanies any characterization of service of Under Other Than Honorable Conditions, the Board determined that restoring the applicant’s rank had no merit as well. 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. AR 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an (Honorable Discharge) is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b states 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 10-1, provides that a Soldier 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. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. 3. AR 600-200 (Enlisted Personnel Management System), paragraph 6-11, states when the separation authority determines that a Soldier is to be discharged from the service under than honorable conditions, he or she will be reduced to the lowest enlisted grade. ·Board action is not required for this reduction. The commander having separation authority will, when directing a discharge under other than honorable conditions, or when directed by higher .authority, direct the Soldier to be reduced to private, E-1. 4. AR 635-5-1, table 2-3 (Separation program designator codes applicable to enlisted personnel), provides that a member who is discharged under the provision of AR 635-200, chapter 10, in lieu of trial by court martial will be assigned the Separation Code KFS. This Separation Code has a corresponding RE Code of 3. 5. AR 601-210 (Regular Army and Reserve Enlistment Program), governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army and the U.S. Army Reserve (USAR) for enlistment on or enlistment on or after the effective date of this regulation. 6. By AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 7. 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) AR20180008891 6 1