ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20190006285 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC84-03107 17 October 1984. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), with self-authored statement dated 18 March 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 10 March 1982 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC84-03107 on 17 October 1984. 2. As a new argument, the applicant states in effect that the incident was an accident and he never intentionally meant to harm anyone. He wish things could be different and asks for forgiveness. He does not have any more documents to add. 3. The applicant enlisted in the Regular Army on 23 March 1979. 4. The applicant accepted nonjudicial punishment (NJP) on 1 June 1981, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for assaulting a noncommissioned officer (NCO) by hitting her in the face with a phone receiver, on or about 17 May 1981. His punishment included his reduction to the rank/grade of private first class/E-3, and confinement for seven days [suspended until 29 August 1981]. 5. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) is not available for review in this case; however, documents contained within the record show the applicant was charged with "assault with a means likely to produce grievous bodily harm," on or about 19 February 1982. 6. The applicant’s complete discharge packet is not available for review. However, his record contains DA Form 2496 (Disposition Form), dated 19 February 1982, which shows he consulted with legal counsel on 19 February 1982. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. He indicated he did not desire to submit a statement in his own behalf. 7. The applicant’s service record contains a memorandum from the Staff Judge Advocate, showing his entire chain of command recommended approval of his request for discharge under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial, with the recommendation that he be separated with a UOTHC discharge. 8. The applicant was discharged on 10 March 1982, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court- martial. The DD Form 214, he was issued shows his service was characterized as UOTHC, and further shows in: * Item 12c (Net Active Service This Period), he was credited with completing 2 years, 7 months, and 24 days; * Item 24 (Character of Service), “UNDER CONDITIONS OTHER THAN HONORABLE” * Item 28 (Narrative Reason for Separation), the entry "ADMIN DISCHARGE CONDUCT TRIABLE BY COURT MARTIAL" 9. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 10. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his UOTHC discharge. After careful consideration on 14 April 1983, the ADRB denied his request. 11. The applicant applied to the ABCMR for an upgrade of his UOTHC discharge; however, the Board denied his request on 17 October 1984. 12. The Board should consider the applicant's statement and treatment program certificate of completion, in accordance with the published equity, injustice, or clemency determination guidance. 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 service record, the severe nature of his misconduct and his statement regarding the incident, the lack of a separation packet and whether to apply clemency. The Board found no evidence of mitigating factors for the misconduct and the applicant provided no evidence of post- service achievements or letters of reference in support of clemency. The Board determined, based on the preponderance of evidence, that the character of service the applicant received at separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board determined 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 to amend the decision of the ABCMR set forth in Docket Number AC84-03107 on 17 October 1984. 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 2. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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.