IN THE CASE OF: BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20190000285 APPLICANT REQUESTS: His characterization of service be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Report of Separation from Active Duty), for the period ending 14 May 1979 * Mississippi Employment Security Commission letter 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 he was told that a veteran who had served more than 180 days was entitled to benefits. He was also told that over a period of time his discharge would be upgraded. 3. The applicant enlisted in the Regular Army on 30 August 1977. 4. The applicant received NJP, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 19 June 1978, for failure to go to his appointed place of duty on two occasions, on or about 31 May 1978 and on or about 2 June 1978 * on 25 April 1979, for being absenting himself from his unit, from on or about 2300 hours, 22 April 1979 through on or about 1400 hours, 23 April 1979 * on 8 May 1979, for disobeying a lawful order, on or about 8 May 1979 5. Before a special court-martial on or about 15 February 1979, in the Federal Republic of Germany, the applicant was tried and convicted of six specifications of assault on fellow Soldiers. His sentence included his confinement for 65 days, reduction to the rank/grade of private/E-1, and forfeiture of $175.00 pay per month for six months. 6. The applicant requested that the unserved portion of his sentence to confinement be deferred until final action was taken on his court-martial. The deferment was approved on 9 March 1979. 7. The convening authority approved the findings and sentence on 2 April 1979 and directed the sentence be executed. 8. The applicant was transferred to the U.S. Army Retraining Brigade at Fort Riley for his period of confinement. Ultimately, he was discharged from this location; however, the available record does not include any of the separation processing documents. 9. The applicant was discharged on 14 June 1979, under the provisions of Army Regulation 635-200, paragraph 14-33b (1), and his service was characterized as under other than honorable conditions (UOTHC). 10. There is not now nor has there ever been a provision under law or regulation for the automatic upgrade of discharges after the passage of time. 11. The Board should consider the applicant's statement 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 considered the applicant’s statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the serious 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 that 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. 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. Paragraph 14-3b (1) provides a Soldier may be discharged for a pattern of conduct consisting of one of the following: discreditable incidents involving civil or military authorities; or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190000285 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190000285 4 ABCMR Record of Proceedings (cont) AR20190000285 3