ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  12 July 2019 DOCKET NUMBER:  AR20190005377 


APPLICANT REQUESTS:  The applicant requests an upgrade of his undesirable discharge.   

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)



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states he would like to receive Department of Veterans’ Affairs (VA)benefits.

3.On 3 October 1972, he enlisted in the Regular Army for a period of 4 years.

4.On 12 December 1973, the applicant received non-judicial punishment under theprovisions of Article 15 of the Uniformed Code of Military Justice for willfully disobeyinga lawful order.

5.The applicant was convicted by a special court-martial.  He was found guilty ofassaulting specialist five (SP5) DW, by striking at him with his fist.  His sentenceconsisted of hard labor for 2 months and reduction to pay grade E-1.

6.His Personnel Qualification Record shows he was confined at Fort Bliss, TX, from onor about 19 December 1973 to 28 January 1974 and further confined/assigned to theRetraining Brigade at Fort Riley, KS, from on or about 29 January to 9 April 1974.

7.On 22 August 1974, an Extract Copy of Morning Report shows the applicant wasabsent without leave from 1 July to 20 August 1974 and returned to military control atFort Campbell, KY on 21 August 1974.

8.On 21 August 1974, the applicant voluntarily requested to be discharged for thegood of the service under the provisions of chapter 10, Army Regulation (AR) 635-200(Personnel Separations – Enlisted Personnel).  He consulted with military legal counsel.

a.He was advised of his rights and the implications that were attached to hisrequest for discharge.  He was also advised of the basis for his contemplated trial by court-martial and the possible effects of an undesirable discharge.   

b.He acknowledged that he understood he would be deprived of many or all Armybenefits, and may be ineligible for many or all benefits administered by the Veterans Administration.  He also acknowledged that he may be deprived of his rights and benefits as a veteran under both Federal and State law. 

c.He submitted a statement in his own behalf and stated, in pertinent part, he couldnot function in the military under the pressure that had been placed upon him.  He was sent to the Retraining Brigade by a group of racial people at Fort Bliss, TX, and after his completion of rehabilitation he was sent to Fort Campbell, KY, back to active duty.  He came in the Army to better his life, complete his 4 year contract, go to college, and receive an honorable discharge.  However, he was writing a letter that would probably not be read, and he would receive a less than honorable discharge.    

d.Members of his chain of command recommended approval of his request to bedischarged, and recommended the applicant be issued an undesirable discharge.  The applicant was medically cleared for administrative separation.   

e.The separation authority approved the applicant’s request for discharge anddirected that he be issued an Undesirable Discharge Certificate. 

10.On 26 September 1974, the applicant was discharged accordingly.  He completed 1year, 6 months and 13 days of net active service.  He had 164 days of lost time.  His DDForm 214 shows he was discharged with an “under conditions other than honorable”character of service and he was not awarded a personal decoration.

11.Army Regulation 635-200 states that, a member who was charged with an offenseor offenses for which the authorized punishment included a punitive discharge couldsubmit a request for discharge for the good of the service in lieu of trial by court-martial.In a case in which an under other than honorable conditions character of service isauthorized by regulation, a member may be awarded an honorable or generaldischarge, 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. 

12.Army Regulation 15–185 (Army Board for Correction of Military Records (ABCMR))states that the ABCMR begins its consideration of each case with the presumption ofadministrative regularity.  The applicant has the burden of proving an error or injusticeby a preponderance of the evidence.

13.In reaching its determination, the Board should consider the applicant's petition, hisservice record, and his statements in light of the published Department of Defenseguidance 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 dischargeupgrade requests.  The Board considered the applicant’s statement, his record ofservice, the frequency and nature of his misconduct, the reason for his separation andwhether to apply clemency.  The Board found insufficient evidence of in-servicemitigating factors for 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 ofservice the applicant received upon separation was not in error or unjust.2.After reviewing the application and all supporting documents, the Board found thatrelief 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. 



X CHAIRPERSON


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 militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so.

2.Army Regulation 15–185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy, acting through the Army Board for Correction of Military Records (ABCMR).Paragraph 2-9 states that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.
3.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth thebasic authority for the administrative separation of enlisted personnel.

a.Chapter 10 stated a member who was charged with an offense or offenses forwhich 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 tobenefits 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 (UOTHC) discharge is anadministrative 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.  

4.  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.