BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20180009752 APPLICANT REQUESTS: The applicant requests, in effect, an upgrade of his general discharge which was upgraded under the Special Discharge Review Program (SDRP) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Report of Separation from Active Duty) * Self-written statement 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 was a very good Soldier. As a young man coming from a community of poverty his education was very limited. He saw the Army as a learning experience and as he became older he knew that he wanted something bigger for his life. Serving in the Army was fair and an overall good experience. In basic training and advance individual training he was promoted to private first class/E-3, once he arrived in Germany things changed for the worst, he was treated in an unwelcomed manner, but he did not let it discourage him. Joining the Army in the early 1970s was not an easy place after sometime in his unit he was pushed away and forced to leave, he could no longer take the mistreatment, so he thought a general discharge was what he wanted. After his signed his discharge papers he was accused of vandalizing a car tire, sent to the stockade and then discharged. He now has a beautiful family, which includes 4 beautiful children and grandchildren, 5 great-grandchildren, and a beautiful wife 3. In connection with his induction in the Army of the United States (AUS), the applicant had to be granted a waiver for prior juvenile convictions of armed robbery and auto theft. 4. On 25 January 1971, the applicant was inducted into the AUS. 5. On 21 December 1971, he received non-judicial punishment for being absent without leave from 3 December to 6 December 1971. 6. On 16 May 1972, he was medically cleared for chapter 10 administrative separation. 7. On 17 May 1972, court-martial charges were preferred against him for: * being disrespectful in language to his superior noncommissioned officer (NCO) * being disrespectful to a superior commissioned officer * wrongfully and willfully destroying the private property of an NCO * wrongfully communicating a threat to injure a Soldier by stabbing him with a knife 8. The applicant voluntarily requested a discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service in-lieu of trial by court-martial. a. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge and elected not to submit statements in his own behalf. b. His chain of command recommended approval of his request to be discharged with the issuance of an Undesirable Discharge Certificate. The separation authority approved the applicant’s discharge request for the good of the service with an Undesirable Discharge Certificate. 9. On 6 June 1972, the applicant was discharged accordingly. He completed 1 year, 4 months, and 9 days of net service. He had 3 days of lost time. The applicant was not awarded a personal decoration. 10. In September 1973, the Army Discharge Review Board (ADRB) determined that he was properly discharged and his request for a change in the type and nature of his discharge was denied. 11. In June 1977, his undesirable discharge was upgraded to a general discharge under the Department of Defense (DOD) SDRP. 12. In July 1978, the ADRB reviewed the applicant’s case under the provisions of Public Law (PL) 95-126 and voted unanimously not to affirm the applicant’s discharge under the uniform standards. 13. On 2 November 1978, the ADRB notified the applicant that his DOD-SDRP upgraded discharge could not be affirmed under review standards required by PL 95- 126. 14. A DD Form 215 (Correction to DD Form 214), dated 21 November 1978, shows item 27 (Remarks) was corrected to read "DISCH REVIEWED UP PL 95-126 AND A DETERMINATION MADE THAT CHARACTERIZATION OF SERVICE WAS UP DOD SDRP 4 APR 77." 15. On 29 November 1978, as required by PL 95-126, the ADRB re-reviewed the upgrading of the applicant’s discharge and determined that he did not qualify for upgrading under the new uniform standards for discharge review. His discharge upgrade under the DOD-SDRP was not affirmed. 16. Army Regulation 635-200 states that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. In a case in which an under other than honorable conditions (UOTHC) discharge is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 17. Public Law 95-126, enacted on 8 October 1977, stated generally that no Veterans Affairs benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the Department of Defense SDRP. It required the establishment of uniform published standards, which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases. The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards. 18. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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 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. ADMINISTRATIVE NOTE(S): Not Applicable 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) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 3. Public Law 95-126, enacted on 8 October 1977, stated generally that no Veterans Affairs benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the Department of Defense Special Discharge Review Program (SDRP). It required the establishment of uniform published standards, which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases. The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards. 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. a. 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 on the basis of 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. b. 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) AR20180009752 4 ABCMR Record of Proceedings (cont) AR20180009752 1