ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20180009876 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed forces of the United states ) * DD 214 (Report of Separation from Active duty) 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 that caused him to receive an under other than honorable conditions discharge was a result of unresolved emotional grief after his roommate was killed in a car accident. He went to the emergency room a few months later to bring an injured friend. He was told to leave and go to another medical facility. That statement cause him to lose it and knock a pen out the hand of the attending physician. He had emotional and anger problems for many years after the death of his friend. He is sorry for his actions in the emergency room that evening. 3. The applicant provides a DD Form 214 (Report of Separation from Active duty). 4. A review of the applicant’s service records shows the following: a. He enlisted in the United States Army Reserve (USAR) on 8 June 1977. b. He entered active duty for training (ADT) on 5 August 1977. He completed the required training for award of military occupational specialty 67V (Scout Helicopter Repairman). a. c. He was released from ADT (active duty training) to the control of his U.S. Army Reserve unit. His DD Form 214 shows he was released from active duty in accordance with chapter 4 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), due to completion of required active service. He received a character of service of honorable discharge. d. He was honorably discharged from the USAR on 5 December 1978. e. He enlisted in the Regular Army on 6 December 1978. f. He accepted nonjudicial punishment on/for * 17 August 1979 for failing to be at his appointed place of duty on 5 August 1979, reduction to private/E-2 (suspended) * 26 February 1980 for failing to be at his appointed place of duty on 11 February 1980 * 26 January 1981 for disobeying a lawful order on 15 January 1981, reduction to private first class/E-3 (suspended) g. The entire separation packet is unavailable for review. However, On 6 May 1981, the applicant was discharged from active duty at Fort Lewis, WA. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable condition characterization of service. He completed 2 year, 5 months, and 1 day of active service. 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, 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 Under Other Than Honorable Conditions Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 6. By regulation, a member who requests discharge as prescribed in chapter 10 may be issued an under other than honorable conditions discharge if he or she has been afforded the opportunity to consult with a consulting counsel. The member must certify in writing that he or she, understands that he or she may receive a discharge under other than honorable conditions. The member must understand the adverse nature and possible consequences of such a discharge. The member must personally sign a request for discharge. 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. 4. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the absence of a separation packet, the reason for his separation and whether to apply clemency. The Board found in-sufficient evidence of in-service mitigation for the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence to include the short term of honorable service completed prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of discharge was not in error or unjust. 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. 8/14/2019 X CHAIRPERSON Signed by: 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 (AR) 635-200 (Personnel Separation – 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 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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but 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 under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the Service. However, the separation authority may direct a General Discharge Certificate, if such is merited by the member's overall record during the current enlistment. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.