IN THE CASE OF: BOARD DATE: 15 November 2019 DOCKET NUMBER: AR20190004576 APPLICANT REQUESTS: The applicant requests an upgrade of his under than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Intake Coversheet, dated 23 January 2019 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 he was discharged from the military for fighting. The conflict had racial overtones and he was targeted. There was no investigation into the incident which led to his discharge. He was expected to overlook racism and when he stood up for himself, he was punished. Because racism is no longer tolerated in the military, if he was currently in, the result may have been different. 3. On 18 March 1980, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 4 years. 4. He accepted nonjudicial punishment (NJP) on: * 14 December 1980 for assaulting another Soldier * 3 April 1981 for failing to go at the time prescribed to his appointed place of duty * 7 May 1981 for, on two occasions, failing to go at the time prescribed to his appointed place of duty * 20 May 1981 for communicating a threat to a noncommissioned officer (NCO) to injure him by busting his face and assaulting a superior NCO by swinging at him with his fist 5. On 19 October 1981, the applicant went absent without leave (AWOL) and returned on 27 October 1981. 6. His record contains 2 counseling forms and 19 statements during the period 24 May 1981 to 19 October 1981, regarding his misconduct for, but not limited to: disrespect to an NCO, missing formations, being disruptive to a roommate’s guest, breaking restriction, his unacceptable performance, and him being recommended for a bar to reenlistment. 7. A military police report revealed that on 15 September 1981, the applicant was apprehended by military police for assault on an NCO, disrespect to an NCO, and drunk and disorderly conduct. 8. On 19 November 1981, the immediate commander initiated a bar to reenlistment against the applicant and on the same date, the bar was approved by the approving authority. 9. In connection with the administrative separation, the applicant underwent a mental status examination and a medical examination; both cleared the applicant for administrative separation. 10. On 26 October 1981, the applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 33b(1), frequent incidents of a discreditable nature with civil or military authorities and paragraph 33b(2) for an established pattern of shirking. 11. On 4 November 1981, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action, understood his rights, waived personal appearance before a board, and elected not to submit a statement in his own behalf. 12. The chain of command recommended approval of the recommendation for separation and on 3 December 1981, the appropriate separation authority approved the discharge, directing the applicant be discharged with an under other than honorable conditions discharge and that he be reduced to the grade of E-1. 13. On 23 December1981, the applicant was discharged accordingly under AR 635- 200, paragraph 14-33b(1), misconduct – frequent incidents of a discreditable nature with civil or military authorities. His service was characterized as UOTHC. He completed 1 year, 8 months, and 27 days of net active service this period, with 10 months and 15 days of Foreign Service. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows: * He was awarded or authorized: * M16 Rifle Marksman Marksmanship Qualification Badge * Army Service Ribbon * Overseas Service Ribbon • Dates of Time Lost During This Period: "811019 – 811027" (the record shows he returned on 27 October 1981) 14. On 9 September 1992, the Army Discharge Review Board denied his petition, determining that he was properly and equitably discharged. 15. The applicant provides DD Form 149 (Application for Correction of Military Record), as previously discussed and the VA Intake Coversheet, dated 23 January 2019, which shows that he submitted the DD Form 149 and DD Form 214 to the VA. 16. The applicant states he was discharged from the military for fighting. The conflict had racial overtones and he was targeted. There was no investigation into the incident which led to his discharge. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence b. His record shows he enlisted at the age of 18 years old, he accepted four NJPs, his record contains 2 counseling forms and 19 statements regarding his performance and conduct, he was barred from reenlistment, and he had 8 lost days due to being AWOL. The applicant served 1 year, 8 months, and 27 days of his 4 years contractual obligation. 17. The applicant was separated for frequent incidents of discreditable nature with civil or military authorities. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 18. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD 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 record showing the frequency and nature of his misconduct, the contents of the MP report, the separation packet and the reason for his separation. The Board considered the applicant’s statement regarding racial overtones as related to his misconduct and his VA Intake Cover Sheet. The Board found insufficient evidence of in-service mitigation to overcome the 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 : : : 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. Chapter 14 of the regulation dealt with separation for various types of misconduct. Paragraph 14-33b(1) provided for the separation of a Soldier due to frequent incidents of discreditable nature with civil or military authorities. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. a. An honorable discharge was a separation with honor and entitled 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Upon determination that a member is to be separated with a discharge certificate under other than honorable conditions the separation authority will direct reduction to the lowest enlisted grade by the reduction authority. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190004576 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190004576 6 ABCMR Record of Proceedings (cont) AR20190004576 5