ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 July 2019 DOCKET NUMBER: AR20180012656 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 it has been 40 years and requests an upgrade to his under other than honorable discharge. 3. A review of the applicant’s service record shows: a. His record is void of his enlistment contract, but according to his DD Form 214, (Certificate of Release or Discharge From Active Duty) applicant enlisted in the Regular Army on 4 November 1978. b. He served overseas in Germany from 28 November 1978 to 24 June 1979. c. On 7 May 1979, he accepted non judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, (UCMJ), for failing to be at his appointed place of duty at the prescribed time and for failing to obey a lawful general regulation by consuming alcohol while on duty. d. On 1 August 1979, he was convicted by special court-martial order number 4 on 2 specifications of striking another Soldier on the head with his closed fist and on the body with a trash can lid. The military judge sentenced him to confinement at hard labor for 75 days, forfeiture of $150.00 pay for 3 months and a reduction in rank to Private/E-1. e. On 9 October 1979, he accepted NJP under the provisions of Article 15, UCMJ, for willfully failing to obey a lawful order by not continuously walking his fireguard post on 3 October 1979 f. On 19 October 1979, he accepted NJP under the provisions of Article 15, UCMJ, for willfully failing to obey a lawful order given by his superior non-commissioned officer to not leave the learning center without permission on 18 October 1979. g. His record is void of his commander’s notification of his intent to initiate a Chapter 14 discharge for misconduct, however on 15 November 1979, the applicant signed an acknowledgement from his commander notifying him of his intent to initiate action to effect his discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), chapter 14, for misconduct (patterns of misconduct). Specifically: * numerous occasions of disrespect to the chain of command * numerous Article 15's and a special court-martial * numerous counseling statements h. Following consultation with legal counsel, he understood his rights and acknowledged the following: * he understood if this discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he understood that he may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf but he did request consideration of his case by a board of officers and to also appear before that board i. His chain of command recommended approval of his chapter 14 discharge with the issuance of an under other than honorable conditions discharge. j. His record is void of the separation authority’s approval, however, according to his discharge orders and DD Form 214, he was discharged on 18 December 1979 under the provisions of AR 635-200, chapter 14 or misconduct and given a characterization of under other than honorable conditions discharge. It also shows he had 11 months and 26 days of active service with 1 year, 7 months and 18 days of prior active service with no lost time. 4. On 15 February 1983, the Army Discharge Review Board, after careful consideration of his military records and all other evidence, determined that he was properly discharged and his request was denied. 5. By regulation, (AR 635-200), action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed or rehabilitation is impracticable or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record). 6. 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 pattern of misconduct, which included violent behavior towards others, as well as the failure to accept responsibility and show remorse for the events leading to his 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 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 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (honorable) provides that an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General) provides that a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent non-judicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. c. Chapter 14 of this regulation establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct. Action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed or rehabilitation is impracticable or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record). 3. 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) AR20180012656 4 1