ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS
RECORD OF PROCEEDINGS

                   IN THE CASE OF:

                   BOARD DATE:  31 May 2019

                   DOCKET NUMBER:  AR20180016518

APPLICANT REQUESTS:  His under honorable conditions (general) discharge be upgraded to an honorable discharge; correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a different narrative reason for separation; and a personal appearance before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), with an undated self-authored statement
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), page 1 dated 22 July 1981 and page 4 dated 28 July 1981
* DA Form 2-1 (Personnel Qualification Record – Part II)
* DA Form 2-2 (Insert Sheet to DA Form 2, Record of Court-Martial Conviction)
* DA Forms 2627 (Record of Proceedings Under Article 15, [Uniform Code of Military Justice] UCMJ), dated 4 May 1983
* Summary Court-Martial Order Number 23, issued by 1st Battalion, U.S. Army Correctional Activity, Fort Riley, KS on 23 March 1983
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 19 May 1983 (3 copies)
* an internet printout of a request for information form from the Department of Veterans Affairs (VA) Inquiry Routing and Information System (IRIS), dated 
8 January 2018
* an internet printout of Civil Docket for Case# 5:15-cv-00478-CLS, from the U.S District Court, Northern District of Alabama (Northeastern), dated 25 January 2018     
* a request for his Official Military Personnel File (OPMF) from the State of Alabama, Department of Veterans Affairs, dated 26 July 2018
* a response letter from the National Personnel Records Center (NPRC), St. Louis, MO, dated 29 August 2018




FACTS: 

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 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, in effect, 

Duty and Honor.  Know fallen commrad will be left behind.  Earn your wings.  Red, white an blue, our colors.  Visual, empact, zero-end.  Cleaner safer and cheaper.  Earn your stripes.  The black horse tradition, resources or support.  Can you read and write?  Battle dress, know fear. An investment to stand poised, parade rest, Soldier.  D.Y.A  A.Y.A  C.O. and Military issue or property.  The throughbred tradition.  Ride forth victoresly. Battle axe or gaide your sword.  March 4th 1962 it brings tears to your eyes. 

3.  The applicant enlisted in the Regular Army on 28 July 1981.  

4.  The applicant’s service contains a DD Form 4126-R (Bar to Reenlistment Certificate), initiated on 25 August 1982 and approved on 27 August 1982, showing the applicant was barred from reenlistment. 

5.  The applicant was tried before a special court-martial on or about 2 December 1982, at Fulda, Federal Republic of Germany, and was convicted of violating Article 108 of the Uniform Code of Military Justice (UCMJ).  Specifically, he was convicted of negligently losing an M16A1 rifle, on or about 5 August 1982.  His sentence included hard labor without confinement for two months.  The convening authority approved the sentence and order it duly executed on 23 December 1982.  

6.  The applicant was tried before a summary court-martial on or about 4 March 1983, at Fulda, Federal Republic of Germany, and was convicted of violating Article 134 of the UCMJ.  Specifically, he was convicted of communicating a threat to a commissioned officer, on or about 6 February 1983.  His sentence included 30 days confinement at hard labor.  The convening authority approved the sentence and order it duly executed on 4 March 1983.  He was ordered to be confined at the U.S. Army Correctional Activity, Fort Riley, KS.

7.  Summary Court-Martial Order Number 23, issued by Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, on 23 March 1983, temporarily suspended the unexecuted portion of the approved sentence, until 15 July 1983, at which time, unless sooner vacated, the suspended portion of the approved sentence would be remitted without further action. 
  
8.  Orders Number 57-1 issued by Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, on 23 March 1983, show the applicant was released from correctional custody and assigned to 2nd Unit, 1st Battalion, Fort Riley, KS for retraining. 

9.  The applicant accepted nonjudicial punishment (NJP) on 4 May 1983, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being disrespectful in language towards two superior noncommissioned officers, on or about 
3 May 1983.  

10.  The applicant's immediate commander notified the applicant on 3 May 1983 that he was initiating actions to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, by reason of misconduct.  Specifically; his patterns of misconduct, demonstrated by him receiving a Special Court-Martial, a Summary Court-Martial, and an Article 15 in 21 months of service.  The commander also listed his unsatisfactory performance during retraining and receiving an Article 15 during retraining, as reasons for his actions. 

11.  The applicant waived his right to consult with counsel on 3 May 1983 but acknowledged he was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, Chapter 14 and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights.  He acknowledged he may encounter substantial prejudice in civilian life if he received a UOTHC discharge.  

12.  The applicant submitted a statement in his own behalf, wherein he noted he was recommend for discharge by his primary counselor because he was accused of committing an act of misconduct a day following graduation.  The Article 15 he received for being disrespectful towards a noncommissioned officer by saying "alright, don’t get shook up" or word to that effect, was handled quite severely.  He was outstanding during his training cycle and had one unsatisfactory the first week of training.  He received no reprimands or observation reports, the rest of the training cycle.  He was the only one recommended for a Chapter 14, to finish the entire training cycle.  Even though he did not graduate he was proud to Soldier to the end.  He was motivated without backing out.  It hurt him a great deal to see almost 2 years, 40 days leaves, and $4800 in education benefits go down the drain due to an Article 15.  He closed by requesting a personal visit with the commander.             

13.  The applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, because of 
two court-martials, an instance of NJP, and the applicant's failure to respond constructively to rehabilitation and retraining efforts. 

14.  The applicant’s intermediate commander recommended approval of the discharge request on 4 May 1983. 

15.  Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 17 May 1983, under the provisions Army Regulation 635-200, Chapter 14, by reason of misconduct.  He directed that the applicant receive a UOTHC Discharge Certificate.

16.  The applicant was discharged on 19 May 1983.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 14, his service was characterized as UOTHC.  His DD Form 214 further shows in:

* Item 12c (Record of Service – Net Active Service This Period), he was credited with completing 1 year, 9 months, and 3 days of net active service
* Item 28 (Narrative Reason for Separation), the entry "Misconduct – pattern of misconduct"
* Item 29 (Dates of Time Lost During this Period), the entry “830304-830322”

17.  The applicant provides the following for consideration in his case:

* an internet printout for a U.S District Court, Northern District of Alabama (Northeastern), for Civil Docket for Case# 5:15-cv-00478-CLS, dated 25 January 2018, showing it was terminated on 24 March 2015 [unclear intent]     
* VA IRIS, and NPRC request for records
* NPRC response to his records request

18.  In reaching its determination, the Board should consider the applicant’s request in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION

1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests.  The Board discussed the nature of his misconduct, the opportunity he was provided for retraining and his statement.  The Board found no mitigating factors and the applicant provided no statement regarding post-service conduct that would warrant a consideration for clemency.  The Board determined that based on the available evidence, no correction to his record was warranted.  The Board further determined that the evidence of record was sufficient to render a fair consideration and to not grant his request for a personal appearance.

2. After reviewing he application and all supporting documents, the Board determined that relief was not warranted.




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):  N/A



REFERENCES:
1.  Title 10, U.S. Code, 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.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	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 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline).  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds.  

	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, Boards 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.

ABCMR Record of Proceedings (cont)	AR20180016518

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