ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 July 2019 DOCKET NUMBER: AR20180009272 APPLICANT REQUESTS: an upgrade of his under other than honorable condition discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement, dated 20 June 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Certificate of Completion (Jungle Warfare Training Course) * Certificate of Achievement – 326th Engineer Battalion, 101st Airborne Division * Letter of Appreciation - Chief of Staff, 101st Airborne Division (Air Assault) * Endorsement to Letter of Appreciation - Chief of Staff, 101st Airborne Division * Letter of Commendation - Commander, Company B, 326th Engineer Battalion * Certificate of Appreciation – Commander, Headquarters Company, 326th Engineer Battalion * Letter of Appreciation – Commander, 1st Battalion, 7th Air Defense Artillery 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: a. His sense of serving and reason for enlisting in the U.S. Army came from an example of service to our country long established by his grandfather, uncles and cousins. He in fact enlisted shortly after his 18th birthday. He was assigned to an engineer element of the 101st Airborne Division and loved his job. His plans were to reenlist until he had an unfortunate lapse in judgement. During his tenure with the 101st Airborne Division, he completed several courses and earned many accolades. b. In regards to the incident that eventually caused his discharge, he panicked and used poor judgement. Although it was his desire to own a motorcycle, it wasn’t his intent to damage his vehicle, file a false police report, or submit a fraudulent insurance claim. Upon inquiry by the Criminal Investigation Division, he was truthful about the entire ordeal. Court-martial charges were preferred against him for participating in a scheme to falsely collect currency from an insurance claim which led to his discharge in-lieu of court-martial. c. Since separation from the military he has worked as an electrician. He owned and managed his business for 15 years. He retired once his disabilities began to affect his work. He has replayed the events of the incident several times and concludes he should have reported his accomplice to the appropriate authorities. He regrets his decision making process and often wonder how his military career would have looked had he made better choices. He remains embarrassed as he writes this statement of incidents that occurred some many years ago. d. In closing, he states it is his desire to have his discharge upgraded, hold his head high with pride and stand next to his daughter who is an honorably discharged Iraqi War Veteran. He also would like to qualify and apply for Veteran Affairs benefits. 3. The applicant provides his course completion certificate and certificate of achievement certifying his designation as a jungle expert. He received letters of appreciation recognizing his efforts while serving as a sedan driver for the Joint Visitors Bureau during exercise Eagle Strike I. He also received recognition for his maximum score on the OPSEC Test during the Annual General Inspection and for his outstanding support rendered during exercise Eagle Strike III. 4. The applicant’s service records shows: a. He enlisted in the Regular Army on 25 July 1979. b. On 12 September 1980, he was convicted by a summary court-martial of one specification of willfully and wrongfully damage to a vehicle and one specification of unlawfully strike an individual. The court sentenced him to reduction to private (PV2)/E-2, forfeiture of $200.00 per month for one month, 30 days extra duty and restriction. His reduction to PV2 was subsequently suspended for 90 days. c. The applicant accepted nonjudicial punishment (NJP) as follows: * 17 October 1981, failure to obey a lawful regulation, reduced to private first class/(E-3) * 30 November 1981, disrespectful language toward a noncommissioned officer, disobeyed a lawful order, and communication of a threat, reduced to private/(E-2) d. On 29 April 1983, court-martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) shows he was charged with the following specifications: * one specification of attempt to steal by false pretenses U.S. currencies of value exceeding $1,000.00 * one specification of conspiracy with another service member to commit arson and larceny of U.S. currency exceeding $1,000.00 * one specification of willfully and maliciously burn a privately owned vehicle on federal property e. On 20 May 1983, the applicant consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. In his request, he acknowledged: * 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 * admission of guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a punitive discharge * he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans’ Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State laws * he also understood that he may encounter substantial prejudice in civilian life because of an undesirable discharge f. The applicant elected to submit the following statements in his behalf: (1) His squad leader, Staff Sergeant X___ states the applicant’s technical and tactical expertise far exceeded that of his peers. He had a driven attitude participated in many major exercises and excelled in most everything he did. (2) His platoon sergeant, Sergeant First Class X___ states the applicant was an outstanding Soldier with exception of his extra-curricular activities. He rated the applicant as the platoon’s number one equipment operator. His record of counseling shows he would have been promoted provided his lapse of judgement had not occurred. He supports a fresh and clean start of the individual in civilian life. g. Consistent with the chain of command’s recommendation, on 17 June 1983, the separation authority approved the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. The separation authority directed that the applicant be reduced to the lowest enlisted grade and issued an under other than honorable discharge. h. The applicant was discharged from active duty on 22 June 1983. He completed 3 years, 10 months, and 28 days of active service. His DD Form 214 shows he was discharged under the provisions of AR 635-200, Chapter 10 with an under other than honorable conditions discharge. It also shows he was authorized or awarded: * Army Service Ribbon * Air Assault Badge * Jungle Expert Badge * Driver and Mechanic Badge (Wheel * Expert Marksmanship Qualification Badge with Rifle Bar (M-16). j. 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, a member 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. An Under Other Than Honorable Discharge Certificate normally is appropriate for a member who is discharged 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 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 multiple offenses of a criminal nature, some of which included violent behavior towards others, 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 (Personnel Separations – Enlisted Personnel) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service general 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 (General Discharge) states 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. 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) AR20180009272 6 1