ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 August 2019 DOCKET NUMBER: AR20180013266 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 that Veterans were told to sign discharge papers and never told what type of discharge they were getting. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 12 January 1977. b. He served overseas in Hawaii from 26 May 1977 to 2 August 1978. c. He accepted nonjudicial punishment under Article 15 on 6 September 1977 for dereliction of his duties. On or about 3 September 1977, he failed to stay awake while on guard duty. His punishment included forfeiture of $30 and extra duty for 5 days. d. On 11 April 1978, court-martial charges were preferred on the applicant. His DD Form 458 (Charge Sheet) indicates he was on/for: * 10 April 1978, one specification of unlawfully striking a Soldier with his hands * 10 April 1978, one specification of disobeying a lawful order from a commissioned officer * 10 April 1978, one specification of striking his superior commissioned officer * e. On 23 May1978, he accepted nonjudicial punishment for being absent without leave (AWOL) on 4 February 1978 and 14 February 1978. His punishment included reduction to private/E-1, forfeiture of $50 and restriction and extra duty for 14 days. The portion of the punishment that includes his reduction to private/E-1 is suspended for 90 days. On 11 April 1978, his suspension of the reduction to private/E-1 is vacated due to his violation of Article 90 on two occasions, disobeying a lawful order from an officer and striking an officer. f. On 23 May 1978, he consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * maximum punishment * he voluntarily request discharge for the good of the service under the provisions of Chapter 10, AR 635-200 (Personnel Separations – Enlisted Personnel) which also authorizes imposition of a bad conduct or dishonorable discharge * he is guilty of the charge against him or of a lesser included offense * he is afforded the opportunity to consult with appointed counsel for consultation * he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate * he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge * request for discharge may be withdrawn only with consent of the commander exercising court-martial authority, or without that commander’s consent * he elected to submit a statement on his own behalf g. The applicant elected to make a statement and stated he hopes that his request for discharge will be approved and that he will be issued an under honorable conditions discharge. He enlisted when he was 22 years of age and was 24 years old at the time of his request for discharge. He graduated from high school, worked at Magnavox Corporation, Industrial Colloids (a chemical, manufacturer) and he drove a truck. He states that he thought that the military would provide him with opportunities that he did not have as a civilian. He completed basic training and advanced individual training (AIT) and he really enjoyed it. He completed his training with the 25th Infantry Division and upon completion, within the first year things started to change. He states that looking back, he was too old when he enlisted and he could not adapt to rigorous a. discipline and harassment that junior enlisted personnel must endure. He came into the Army with the best of intentions and the highest of aspirations, but he is afraid that it was too late in life for him to have been able to adapt to this lifestyle. He has no further desire to continue in the military and he thinks that it would be best for him to return to the civilian world according to the applicant. h. On 16 June 1978, consistent with the chain of command recommendations, the separation approval authority approved the applicant’s request for discharge for the good of the service. He would be discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions, and reduced to the lowest enlisted grade. i. On 2 August, 1978 he was discharged from active duty under the provisions of AR 635-200, chapter 10 and issued an under other than honorable conditions discharge. His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 6 months and 21 days of active service. It also shows he was awarded or authorized: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Hand Grenade Expert Qualification Badge k. His DD Form 214 shows in: * Block 9e (Character of Service), Under Other Than Honorable Conditions * Block 9f (Type of Certificate Issued) DD Form 794A 4. By regulation, an individual who has committed an offense or offenses, the punishment for any of which includes a bad conduct discharge or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable conditions characterization of service is appropriate for an individual who is discharged for the good of the service. 5. By regulation, Army Regulation (AR) 635-5 (Separation Documents) in effect at the time states source documents will consist of all available records. Item 13a of the DD Form 214 covers the character of service and item 13b covers the type of certificate issued. 6. 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. 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. 1. 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 found no mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference to support clemency. Based upon the short term of honorable service completed prior to a pattern of misconduct, which included offenses of a violent nature towards others, and a preponderance of the evidence, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 9/9/2019 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states 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 current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is 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 Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 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, 1. 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.