IN THE CASE OF: BOARD DATE: 9 April 2020 DOCKET NUMBER: AR20180011421 APPLICANT REQUESTS: Correction of his record to upgrade his under other than honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Discharge Review Board (ADRB) letter, dated 6 December 1985 * Veterans Affairs (VA) letter, dated 19 June 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 (ABCMR) 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 had requested a review prior to this, but he never received an answer until 18 June 2018. Two prior requests were made, but he only found the letter, dated 6 December 1985 from the Department of the Army Administration Center. 3. A request for the applicant’s official records was requested from the National Personnel Records Center on 30 August 2018 by the Board. The applicant’s records at the time was out of file. A partial reconstructed record was available which contained sufficient documents to make a fair and impartial review of this case. 4. The complete facts and circumstances surrounding the applicant’s discharge action are not available for review. However, available records show the following: a. On 29 March 1974, the applicant enlisted in the Regular Army. b. On 1 July 1975, the applicant accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice for; willfully disobeying a lawful order, failure to go to his appointed place of duty, and wrongful appearance. His punishment was reduction to the rank/grade of private two (PV2)/E-2. c. On 26 September 1975; (1) The applicant underwent a mental health evaluation. His records contain a document that indicates the applicant had normal behavior, was fully alert, level mood with clear thinking processes, normal thought content, and good memory. He had no significant mental illness, and was able to distinguish right from wrong and adhere to the right. He had the mental capacity to understand and participate in board proceedings. d. An SF 93 in the applicant’s records show he was examined as part of a chapter 10 separation. e. On 4 October 1975, the applicant was discharged from active duty under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) with an under other than honorable conditions characterization of service. He completed 1 year, 6 months, and 6 days of net active service. He was awarded or authorized the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). f. On 9 April 1985, the applicant petitioned the ADRB for an upgrade of his under other than honorable conditions discharge to an honorable discharge. g. On 1 October 1985, the applicant again petitioned the ADRB for an upgrade of his under other than honorable conditions discharge to an honorable discharge. h. On 6 December 1985, in response to his April 1985 petition, the ADRB replied to the applicant acknowledging receipt of his application. The scheduling date to consider his application may be several months in the future. i. On 28 February 1986, the ADRB replied to the applicant pertaining to his October 1985 petition and stated, efforts to reconstruct his official military personnel file have been unsuccessful, therefore, sufficient documentation for review by the ADRB cannot be obtained. Consequently his case had to be closed without further action, unless he provided documents pertaining to the facts and circumstances of his discharge. 5. The applicant provides a VA letter wherein the VA informed the applicant they decided his military service for the period 29 March 1974 through 4 October 1975, was honorable for VA purposes. They made their decision based on the applicant having three minor incidents of misconduct which occurred four months prior to his discharge. He advised the VA that he was experiencing difficulties with his family at that point in time. He had completed almost all of his service obligation with no evidence of misconduct. They determined the incidents which led to his discharge were minor in nature and was otherwise honest faithful and meritorious. They used the following documents as evidence: * VA administrative decision, dated 18 June 1976 * Service personnel records received on 11 April 2018 and 2 January 1975 * Service treatment records received on 11 April 2018 * Character of discharge due process letter sent on 6 April 2018 * VA Form 21-0820 (Report of General Information), dated 5 April 2018 * VA Form 21-4138 (Statement in Support of Claim), received on 25 May 2018 6. AR 635-200 in effect at the time sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states 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 provides 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 at any time after the charges have been preferred. The request must have included the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and 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 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. 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. 8. AR 15-185 (ABCMR) paragraph 2-9 (Burden of proof) states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the record of NJP, the absence of a separation packet and the reason for his separation. The Board considered the VA’s evaluation of the applicant’s service but found no evidence of the records they considered. The Board found insufficient evidence to overcome the nature of his discharge and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 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 states an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states 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 provides 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 at any time after the charges have been preferred. The request must have included the individual's admission of guilt. 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 DRBs and 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 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. 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. 4. AR 15-185 (ABCMR) paragraph 2-9 (Burden of proof) states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011421 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1