IN THE CASE OF: BOARD DATE: 5 August 2019 DOCKET NUMBER: AR20190005064 APPLICANT REQUESTS: The applicant requests, in effect, reconsideration to upgrade his undesirable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * Self-written statements FACTS: 1. 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 AC90-05893 on 14 November 1990. 2. The applicant states: * he had an altercation with two privates who accused him of robbing them of their pay * he was arrested and detained pending a court-martial * he was represented by a civilian attorney and it was proven the two men had just arrived at Fort Gordon, GA, and had never received their pay * he was found not guilty of all charges against him * he was not willing to accept responsibility for his actions, and he had heated words with his commander * he did not want to listen to any reasoning and chose to be discharged from the Army with an undesirable discharge * he is disappointed with himself and his actions for not making proper decisions at that time and not being responsible * he was young and pressured by captain F, who was racially bias towards him for being black and his accusers being white; he did not challenge his authority * he would like a military funeral/memorial when he dies, he wants to be a member of the 689 chapter of incarcerated veterans, and be able to receive treatments at the veterans administration (VA) hospital 3. On 14 June 1973, at 18 years old, he enlisted in the Regular Army for a period of 3 years. Upon completion of basic combat training, he was assigned to Fort Gordon, Georgia, for advanced individual training. 4. On 12 December 1973, court-martial charges were preferred against the applicant for stealing by the means of force, United States currency from two privates (two specifications) in violation of Article 122, Uniform Code of Military Justice (UCMJ), and for having in his possession a blank pistol on post, in violation of Article 92, UCMJ. 5. He consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial. He acknowledged that he was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits. He submitted a statement in his own behalf and stated in pertinent part: a. He and another Soldier were walking on Signal Avenue on 1 December 1973 when he looked back and there was two guys walking behind them. He said watch this and he went back to the two guys and he said to them do you have any money at this time. He had a blank pistol in his hand and one guy said we are just out of basic training and do not have any money. b. The Soldier that was with him said this is a blank pistol, and one guy said that he knew it was blank, because he could see the bar inside the barrel. Then the accuser took out his wallet and showed it to the applicant. They started laughing and walked to their company area. 6. The applicant was medically cleared for administrative separation action. His immediate commander recommended disapproval of his request to be discharge under the provisions of chapter 10, AR 635-200; however, his intermediate commander recommended he be eliminated with an undesirable discharge. 7. The applicant’s brigade commander and commandant recommended disapproval of his request to be discharged for the good of the service in lieu of trial by court-martial. 8. On 19 December 1973, the general court-martial convening authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate. 9. On 21 December 1973, the applicant was discharged accordingly under the provisions of chapter 10, AR 635-200 for the good of the service in lieu of trial by court- martial. He completed 6 months and 8 days of his 3 year enlistment. He was not awarded a personal decoration. 10. On 14 November 1990, the Army Board for Correction of Military Records (ABCMR) denied his request for an upgrade of his discharge. 11. On 11 January 2007, the ABCMR reviewed his request for reconsideration and determined that his request for reconsideration was not received within one year of the ABCMR's original decision. As a result, his request for reconsideration was returned without further action. 12. There is no evidence in the applicant’s record and he provided no evidence to support his contentions. The available record contains no indication of procedural or other errors that would tend to have jeopardized the applicant’s rights. 13. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. An undesirable discharge was normally considered appropriate. 14. In regards to the applicant requesting an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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 and length of service, the frequency and nature of his misconduct, the court-martial charges, the reason for his separation and whether to apply clemency. The Board found insufficient in-service evidence of mitigation for 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 :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 to amend the decision of the ABCMR set forth in Docket Number AC90- 05893 on 14 November 1990. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. 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. 2. 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) AR20190005064 4 ABCMR Record of Proceedings (cont) AR20190005064 5