BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20180013768 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to honorable or general, under honorable conditions. 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 he was wrongly done and what supports his claim is in his medical record. In the remarks section a handwritten statement from Pamela Jones states, she is a deputy commonwealth attorney for the city of Hampton, Virginia. The applicant is her brother and for some time now he has worked hard in his community, either through regular employment or repairing automobiles via self-employment. He is respected in the community and has built many positive relationships. He is independent and avoids any conflicts and otherwise doing very well in life. She would like her comments to be considered in the decision making process. 3. On 30 April 1974, the applicant entered active duty. 4. On 22 May 1976, he received non-judicial punishment (NJP) for willfully disobeying a lawful order twice in the same day. 5. An undated handwritten letter witnessed by specialist (SPC/E4) DRN shows the applicant elected to be separated at this time and all documents and pay including travel pay would be mailed to a specific address. The applicant was made aware he would billeting and meals had he elected to separate the following day. Of note, it shows the applicant provided an explanation letter; however, his record is void of such a letter. 6. His record is void of orders, a separation packet or other evidence that shows the specifics surrounding his discharge; however a memorandum, undated, subject: Reason for Separation shows the applicant was separated on 18 May 1976 for Administrative Discharge – Conduct triable by court-martial with reenlistment code of RE-4. 7. On 18 May 1976, he was discharged accordingly with an under other than honorable conditions discharge. His DD Form 214 shows: * Separation Date: 18 May 1976 * Net Active Service: 2 years, 1 month and 19 days * Authority and Reason: Chap 10, AR 635-200 SPD KFS * Type of Separation: Discharge * Character of Service: Under Other Than Honorable Conditions * Lost Time: None * Awards/Decorations: None 8. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 9. The applicant states in effect, he was wrongly done and his medical record shows why. a. Extracts of his health records from August 1974 until April 1976 show where the applicant sought medical attention for knee pain. On 8 April 1976 an entry shows, “EM has again returned to sick call for his feet again seen by M.O. no findings. EM past record and his miss use of sick call is a well noted fact throughout his Army time. Both in his medical records and info from his unit. I feel this man may be malingering. EM was hostile verbally at this time. If he continues this miss use of sick call it will be necessary for further action.” On 10 April 1976, another entry in his health record shows, “PROFILE no running in place or jumping jacks also is permitted to take off boots and elevate feet while in his cell x 14d.” b. He also states the reason he should be upgrade are in his medical record, he does not provide evidence or indicate exactly what the error or injustice is. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR, and provides, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity 10. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. The Board found limited evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. 4. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR, and provides, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity. 5. 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. a. 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. b. 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) AR20180013768 4 ABCMR Record of Proceedings (cont) AR20180013768 1