ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 August 2019 DOCKET NUMBER: AR20180009400 APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Appeal Letter from Applicant * Response Letter to Applicant from Army Review Boards Agency, Congressional Liaison and Inquiries dated 2 April 2018 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 AR20050012534 on 26 February 2006. 2. The applicant states he is appealing a prior decision and is requesting an upgrade of his discharge. The behavior resulting in the discharge was as a direct result of a wreck he was involved in at Hohenfelde, Germany in the fall of 1970. He received a head injury as a result of the accident and his team member died. He knows the Provost keeps records of deaths and loss of equipment. Prior to the accident he was a strike Soldier. He believes he would have been discharged honorably had he not received a head injury that led to the behavior that ultimately resulted in his characterization of discharge. 3. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 26 February 1970. b. He served in Germany from 24 August 1970 to 7 June 1971. c. On 13 November 1970, court-martial charges were preferred on the applicant for: * one specification of attempted murder on a patrolman by running at him with an automobile * two specifications of being absent without leave (AWOL) from 7 October 1970 to 25 October 1970 and on 28 October 1970 * one specification of missing movement, one specification of violating a lawful order by operating a motor vehicle without a valid permit * two specifications of stealing two privately owned vehicles, one specification of stealing an M-16 rifle, one specification of committing assault with a means likely to produce grievous bodily harm * one specification of breaking restriction, and one specification of wrongfully communicating a threat, to wit: “you don’t know who you’re fooling with…, if you touch me one more time I’ll kill you… that’s not a threat, it’s a promise” * he held the rank/grade of private/E-2. d. On 23 April 1971, after consulting with legal counsel he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He elected to submit a statement on his own behalf (not available for review). He acknowledged: * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * he would be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the Veterans Administration, * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life e. On 23 April 1971, consistent with the chain of command recommendations, the separation approval authority approved the applicant’s request for discharge for the good of the service. He would be issued an Undesirable Discharge Certificate and reduced to the lowest enlisted grade. f. On 8 June 1971, he was discharged from active duty with an under other than honorable conditions characterization of service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 2 months, and 25 days of active service with 16 days lost time. It also shows he was awarded or authorized: * National Defense Service Medal * Expert Marksmanship Qualification Badge with Rifle Bar (M-14) * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 4. On 2 April 1975 and 15 February 1983, the applicant was notified the Army Discharge Review Board (ADRB) reviewed his discharge processing but found it proper and equitable. The ADRB denied his request twice for an upgrade of his discharge. 5. On 23 February 2006, the Board also considered his petition for an upgrade but found no error or injustice. The Board denied his request. 6. By regulation, an individual 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 Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 7. 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 serious and criminal nature of the offenses which led to the applicant’s separation, 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 to amend the decision of the ABCMR set forth in Docket Number AR20050012534 on 26 February 2006. _____X_________ 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. 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 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. c. Chapter 10 of this regulation states an individual 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 Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 2. 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) AR20180009400 4 1