ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 June 2019 DOCKET NUMBER: AR20190001835 APPLICANT REQUESTS: In effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service is characterized as general, under honorable conditions, in lieu of under other than honorable conditions (UOTHC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in lieu of a DD Form 149 (Application for Correction of Military Record) * DD Form 214 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, in effect, he was very young and naïve and [the incident in which he was involved] was his first disciplinary problem while serving in the military. He requests that he be forgiven for his actions. 3. On 11 September 1986, at almost age 18, the applicant enlisted in the Regular Army for 3 years. He held military occupational specialty 63N (A3 Tank Systems Mechanic). On 3 March 1987, he was assigned to Fort Polk, LA. 4. A Sworn Statement made by a military police (MP) desk sergeant (SGT) shows on 30 June 1988 he noticed several individuals across the street adjacent to his building and two of the individuals were fighting. MPS were sent to the location and the two individuals that were fighting were apprehended and escorted to the Provost Marshalls Office (PMO) where they were advised of their legal rights and processed. While the two individuals were being processed the applicant entered the PMO and loudly stated he was looking for J______. The applicant was advised to be at ease and if he did not want to act civilized he had to leave the station. The staff duty officer (SDO) entered the station about a minute later and ordered the applicant to leave the station. The applicant refused to leave the station without seeing J______. Two MP’s attempted to apprehend the applicant and he became very combative attempting to strike both of them. Minimum force was used to apprehend him and put him in a cell. He kicked one MP on the leg and tried to hit the other with his fist. He also made a threat to kill one of the MP’s when he got out. When being advised of his rights he stated he did not want to hear it and used profanity to state that he was not signing anything. The applicant and the other two individuals were released to their units. 5. On 28 July 1988, court-martial charges were preferred against the applicant for the following offenses on 1 July 1988: * willfully disobeying a lawful command from a first lieutenant to leave the building * being disrespectful in language toward a sergeant by saying using profanity toward him * assaulting two specialists by kicking and [hitting] them * drunk and disorderly conduct that was of a nature to bring discredit upon the armed forces 6. On 25 August 1988, the applicant consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial. He acknowledge he had been advised of bases for the separation action and of his rights. He indicated that he would submit statements in his own behalf. 7. On 2 September 1988, the applicant provided a statement in his own behalf requesting, in effect, that his military record and military achievements be taken into consideration for his request for discharge. He stated that he accepted responsibility for his actions and acknowledged that he was guilty of the charges brought against him. He stated he was a hard worker, he did not want a bad conduct discharge and a federal criminal conviction. He wanted to be able to pick up the pieces in civilian life and provide for his 1 year old son. His father suffered from alcoholism, which contributed to his death and he did not want that for his son. 8. The applicant also provided three statements written in his behalf that state, in effect: a. Staff Sergeant (SSG) C____ stated he had known the applicant since he had been in the unit. The applicant had the potential to be a good Soldier. His room was kept up to standard, his appearance was always up to standard, and he was a hard worker. He should not be court-martialed. Normally, he would not have behaved in the manner that he did had it not been for alcohol. He continued to work hard even though he was pending court-martial. b. SGT H______ stated he had worked with the applicant since February 1988. The applicant was exceptionally reliable and trustworthy. He made valuable suggestions for making improvements on the job. He had the ability to solve problems, think, reason, and learn. He could handle complex projects. He should not be court- martialed, he should be allowed to leave the service or given another chance. c. SSG P___, stated he had supervised the applicant for the past 2 years. The applicant had a natural ability to learn most tasks quickly. He was a mechanic and he enjoyed his profession. The applicant was motivated and much more advanced than his peers. The incident he was involved in was uncommon to his normal behavior. He was awarded the Army Achievement Medal for outstanding job performance. Alcohol also played a large part in the incident in which he was involved. He should not be court-martialed. 9. The applicant’s unit and intermediate commanders recommended trial by a special court-martial. 10. On 2 September 1988, the appropriate authority approved the applicant's request for separation and directed that he be reduced to pay grade E-1 and issued an UOTHC discharge. 11. Accordingly, on 15 September 1988, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Personnel Separations), for the good of the service, in lieu of court-martial with an UOTHC discharge. The DD Form 214, he was issued shows he completed 2 years and 5 days of active service. His DD Form 214 also shows his awards included the Army Achievement Medal (1st Oak Leaf Cluster) and the Army Service Ribbon. 12. The applicant’s record shows he was charged with the commission of offenses that were punishable under the Uniform Code of Military Justice with a punitive discharge. Discharges under the provisions of chapter 10, AR 635-200, are voluntary requests for discharge in lieu of trial by court-martial. 13. The applicant contends that his discharge should be upgraded because he was young and naïve at the time he served and his separation action involved one incident. However, the available evidence shows he was almost 20 years of age at the time of his offenses and the incident in which he was involved included multiple offenses. Additionally, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service. 14. His characterization of service was in compliance with the governing regulation. He completed two thirds of his 3 year enlistment obligation. 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 guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient 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 found the statement and evidence of previous honorable service in the form of two Army Achievement Medals to be compelling mitigating factors for the applicant’s UOTH discharge. Therefore, the Board found sufficient evidence to upgrade the discharge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending “88-09-15” showing his characterization of service as “General Under Honorable Conditions.” 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. Chapter 10 of the regulation, in effect at the time, provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an UOTHC discharge is normally considered appropriate. b. 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. 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. 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 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. 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) AR20190001835 5 1