IN THE CASE OF: BOARD DATE: 9 September 2019 DOCKET NUMBER: AR20180017019 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to a general 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080017197 on 7 April 2009. 3. The applicant states he believes his record to be unjust. He was told to act a certain way to when he was involved with the criminal investigation division (CID). The activity caused him to be sent to CCF for retraining and because he did not deserve this type of discharge, he was informed that he could be discharged however he did realize his discharge was UOTHC until around 2006 or 2007. His discharge was supposed to be under honorable (general) conditions but not honorable. 4. On 12 March 1985, the applicant enlisted in the Regular Army for three years at the age of 20. 5. The applicant received NJP on three separate occasions for: * Failure to report to his prescribed place of duty on 8 August 1986 * Disobeying a lawful order by wrongfully using another Soldiers meal card to obtain a meal on 18 September 1986 * Leaving appointed place of duty; Disobeying a lawful order by not returning to the residue point with the rest of his section; and disrespect to an NCO by calling your superior NCO a liar 9 January 1987. 6. On 9 January 1987 the applicant appealed his latest NJP to his higher command, stating in part although there are good and trustworthy troops who helped recently during his military downfall, the forfeiture of $300 per month for two months would cause him more problems because he was already owed the Army $434. His appeal was denied and he was reduced to Private (E1), forfeiture of $329 for two months, and confined to the correctional custody for 30 day. 7. On 9 March 1987, a Bar to Enlistment/Reenlistment Certificate shows his commander initiated a bar to reenlistment. The commander indicated the applicant refused to sign and acknowledge the bar. The applicant did not elect to submit a statement on his behalf. The command recommended he be barred from reenlistment for unsatisfactory conduct, for specifically: * Three records of NJP * Six months of subpar conduct * Negative influence on younger Soldiers within the unit * Numerous occasions attempting to manipulate the system for personal gain, putting a strain on his chain of command 8. On 9 April 1987, he received NJP for disobeying a lawful order by not going through the obstacle course at the beginning. The applicant appealed to his brigade commander stating regards to what he and others feel, the punishment is unfair; unfair financially and emotionally. He was also accused and questioned on a charge that was not printed on the DA Form 2627; leaving weapons unsecure and believed that could have been a decision making factor. In his appeal, he accused his NCO of being biased towards him and other black Soldiers. He also requested to speak with his higher commander if he was allowed to share more details about his NJP. The brigaded commander denied the applicant’s appeal. 9. On 31 May 1987, the applicant underwent a medical examination and was deemed qualified for a chapter 14. 10. On 24 July 1987, the commander notified him that he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200, (Active Duty Enlisted Administrative Separations) paragraph 14-12b, patterns of misconduct; he had become a perpetual nuisance to his chain of command; he vehemently resisted all efforts to make him a quality/productive Soldier. The applicant acknowledged he understood his rights available and did not elect to submit statements in his own behalf. 11. The applicant’s commander recommended he be discharged under the provisions of AR 635-200, Chapter 14-12b for patterns of misconduct; specifically for receiving three article 15s for acts of misconduct that have become disruptive to the morale discipline and spirit de corps to the unit. His latest act was being thrown out of the installation correctional custody facility. a. His intermediate chain of command recommended approval and recommended that rehabilitation requirements be waived if they have not been met. b. On 19 August 1987, the appropriate approval authority approved the recommendation for discharge of the applicant and directed he be issued a UOTHC. 12. On 21 August 1987, the bar to reenlistment was reviewed by the commander; he determined that it should remain in effect and on 26 August 1987 the applicant was discharged accordingly; His DD Form 214 shows he completed 2 years, 5 months, and 15 days of net active service. 13. The applicant states he believes his record to be unjust. He was told to act a certain way when he was involved with the criminal investigation division (CID). His discharge was supposed to be under honorable (general) conditions but not honorable. His record shows he completed high school; he completed initial entry training earning military occupation skill (MOS), 13B, Cannon Crewmember. His record is void of him having any involvement with CID. a. Army Regulation 635-200 (Personnel Separations) provides a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. b. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board has is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. c. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge. Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge. 14. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statement in light of the published Department of Defense guidance on equity, injustice, or clemency. 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 considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the Bar to Reenlistment, the absence of evidence showing involvement with CID and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome his misconduct 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 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. 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 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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 personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. (1) The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. (2) Paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. d. Chapter 1, paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not produce a quality Soldier. 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. 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. ABCMR Record of Proceedings (cont) AR20180017019 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180017019 7 ABCMR Record of Proceedings (cont) AR20180017019 5