ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20190002089 APPLICANT REQUESTS: upgrade his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Army Discharge Review Board (ADRB)) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Two DA Forms 4187 (Personnel Action) * Second page of a DA Form 2173 (Statement of Medical Examination and Duty Status) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 his discharge was inequitable because it was based on one isolated incident in 28 months of service; there were no other adverse actions. He rhetorically asks, if he was discharged due to frequent incidents of a discreditable nature, why did he receive an under honorable conditions character of service? He asserts the two DA Forms 4187 he provides confirm his commander removed a promotion block and approved his voluntary request for service in Korea. 3. The applicant's service records show: a. He enlisted into the Regular Army on 13 July 1978 for a 4-year term; he was 18 years old. Following initial training, orders assigned him to Fort Hood, TX; he arrived on 13 October 1978. b. On 12 March 1979, he sustained a back injury due to a motor vehicle accident; he was a passenger. On 11 April 1979, his higher command determined the injury was incurred in-the-line-of-duty. c. The applicant provides a DA Form 4187 showing, on 10 April 1979, he volunteered for duty in Korea; his commander recommended approval. d. On 5 May 1979, his unit reported a change of status for the applicant from present for duty to confined by civil authority; local police arrested him for shoplifting. On 18 May 1979, his duty status was updated to show his release from civil confinement because his case was dismissed without trial. e. The applicant provides a DA Form 4187 reflecting the removal of a promotion block; his commander promoted him to private first class (PFC)/E-3, effective 1 September 1979. f. On 7 March 1980, a summary court-martial convicted him, consistent with his plea, of violating the Uniform Code of Military Justice (UCMJ). (1) The court found him guilty of larceny of private property and sentenced him to 21 days confinement, forfeiture of $150 per month of 1 month, and reduction to private/E-1. (2) The record does not include a copy of the summary court-martial convening authority's action, but it does show, effective 21 March 1980, he was released from confinement at the U.S. Army Retraining Brigade (USARB), Fort Riley, KS. g. On 16 May 1980, while assigned at USARB, he accepted nonjudicial punishment (NJP) under Article 15, UCMJ for possession of marijuana. h. On 5 June 1980, his USARB commander advised him of his intent to separate the applicant for misconduct, per section V (Other Acts or Patterns of Misconduct), paragraph 14-33 (Other Misconduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In the commander's recommendation to the separation authority, he included four pages, which listed the applicant's numerous infractions; the commander stated, despite considerable effort, the applicant had not responded to rehabilitation. i. On 10 June 1980, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action, and had explained his rights, as well as the effect of waiving those rights. He elected to have his case considered by a board of officers, and to personally appear with counsel before that board. He opted not to submit a statement in his own behalf. j. On 2 July 1980, a board of officers convened to consider the applicant's case and determine if he should be retained on active duty; the applicant was present with counsel. (1) The board heard the applicant's testimony; he stated, in effect: (a) He was from nd had lived there his entire life; he was one of 9 children. He entered the Army shortly after graduating high school; he wanted to travel and help care for his family. (b) He offered details regarding his summary court-martial conviction; he said he had told a friend to buy a clock, which the applicant intended to give to his mother. When he went to retrieve the clock, his friend decided to keep it. Although his friend bought the clock with his own money, he was supposed to give it to the applicant; the applicant decided to take the clock. After realizing taking the clock was not the right thing to do, he turned himself in. The applicant went on to address his other incidents of misconduct at USARB. He affirmed the reason he had requested the hearing was because he wanted to remain in the Army. (2) After considering testimony and documentary evidence, the board found the applicant had the ability to perform military duties in a satisfactory manner, and had previously done so for 19 months; the board further noted he had attained the rank of PFC/E-3. However, based on the misconduct reflected by his summary court-martial conviction, an NJP for marijuana possession, and numerous discreditable incidents recorded by the USARB cadre, the board recommended separation with a general discharge under honorable conditions. k. On 9 July 1980, the separation authority approved the board's recommendations and directed the applicant's general discharge under honorable conditions, per paragraph 14-33b (1) (Patterns of Misconduct – Frequent Incidents of Discreditable Nature with Civil or Military Authorities). On 10 July 1980, he was discharged accordingly; his DD Form 214 shows he completed 1 year, 11 months, and 14 days of his 4-year enlistment contract. He was awarded or authorized a marksmanship qualification badge. l. On 23 July 1981, he petitioned the ADRB, requesting an upgraded character of service; he argued, in effect, his discharge had no basis. The ADRB conducted a records review and determined his discharge was proper and equitable; the ADRB denied his request. 4. The applicant contends his discharge was inequitable because it was based on one isolated incident; he asserts there were no other adverse actions. AR 635-200 required commanders to identify Soldiers for discharge when they displayed a pattern of misconduct; this included Soldiers who were involved in frequent incidents of a discreditable nature with civil or military authorities. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published 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 to include his conduct while in the USARB, the reason for his separation and whether to apply clemency. 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 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): Not Applicable REFERENCES: 1. Title 10, USC, 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. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-33 (Other Misconduct). Commanders identified Soldiers for discharge when they displayed a pattern of misconduct; this included Soldiers who were involved in frequent incidents of a discreditable nature with civil or military authorities. An under other than honorable conditions character of service was normally issued for Soldiers discharged under this provision. 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. 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. 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) AR20190002089 2 1