ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 August 2019 DOCKET NUMBER: AR20180010635 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable and a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty * Statement of Support, T.W., 06/20/2018 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 is requesting an upgrade, due to bias and incorrect procedures under the Uniform Code of Military Justice (UCMJ). He believes his reason of discharge is unfavorable, he was not given an opportunity to give his rights under the UCMJ. He was only offered the disciplinary action by the commander without him explaining his options under the UCMJ and his discharge was inequitable because it was one isolated incident during his time in service. He nearly served seven years in the military prior to this incident without any unfavorable actions. Due to the fact findings in 43A and 43B, a court never occurred and he never went to trial. He was offered a Chapter 10 and he was told to keep quiet and once the paperwork was submitted, no findings were submitted to him. 3. The applicant provides a statement of support from X____, dated 20 June 2018, which states the applicant discussed the chain of command’s failure to correctly administer UCMJ action. The applicant had given 7 years of active service without any prior incidents and the chain of command was totally biased and this resulted in the applicant having to give his commander a statement of charges, due to the commander’s negligence in which he received double jeopardy. He recommends that the applicant’s discharge be upgraded to reflect an honorable discharge under honorable conditions. 1. 4. A review of the applicant’s service record shows: a. Having had prior service in the U.S. Army Reserve, he enlisted in the Regular Army on 14 August 1979 for a period of 4 years. He was discharged on 27 July 1983 for immediate reenlistment. b. He served in Germany from 23 February 1985 to 20 March 1986. c. He accepted nonjudicial punishment under Article 15 on 27 February 1986 for drunk driving. His punishment included a reduction to E-4, forfeiture of $400 and extra duty for 30 days. d. The complete facts and circumstances surrounding the applicant’s Chapter 10, to include his packet are not available for the Board’s review. e. However, on 21 March 1986, he was discharged from active duty under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 for the good of the service - in lieu of trial by court martial. His DD Form 214 shows he receive an under other than honorable conditions discharge. He completed 6 years, 7 months and 8 days of net active service. It also shows he was awarded or authorized the: * Army Service Ribbon * Army Achievement Medal * NCO Professional Development Ribbon * Good Conduct Medal (2nd Award) * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Badge with Hand Grenade Bar * Sharpshooter Badge with M-72 Grenade Launcher Bar * Drivers Badge (Wheel). 5. On 16 April 1967, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRN denied his request for an upgrade of his discharge. 6. By regulation, 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. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. 7. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 1. 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 partial relief was warranted. Although the specific facts and circumstances leading to the applicant’s separation are unknown, based upon the misconduct of the applicant being punishable up to and including a bad conduct or dishonorable discharge, and the separation was a voluntary request by the applicant, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the characterization of service. The Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 14 August 1979 until 27 July 1983.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 9/10/2019 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 Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable discharge) states that 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 age, length of service, grade, and general aptitude. b. Paragraph 3-7b (General discharge) states general discharge is a separation from the Army under honorable conditions of an individual whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provides that a member who has committed an offense or offenses, the punishment for any which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under than honorable discharge is normally appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge, if such are merited by the member’s overall record during the current enlistment. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 1. equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.