ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20190006579 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20100025778 on 21 April 2011. Specifically, he requests an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552 ) * a letter from Aspire Health Partners, dated 16 April 2019 * a copy of his Humana Gold Plus card and Medicare Health Insurance card 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 AR20100025778 on 21 April 2011. 2. The applicant states he had minor disciplinary infractions for tardiness, probably four or five times in a two year period. 3. The applicant enlisted in the Regular Army on 16 April 1982. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 7 May 1981, for failure to go at the prescribed time to his appointed place of duty, on or about 5 May 1981 * on 11 August 1981, for willfully disobeying a lawful order, on or about 6 August 1981 * on 11 September 1981, for being derelict in the performance of his duties, on or about 28 August 1981 * on 11 December 1981, for stealing the property of another Soldier, on or about 8 October 1981 * on 6 February 1982, for failure to go at the time prescribed to his appointed place of duty, on or about 4 February 1982 * on 19 March 1982, for failure to go at the time prescribed to his appointed place of duty, on or about 15 March 1982 5. The applicant's commander formally recommended, on 11 January 1982, the applicant's appearance before a board of officers, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the purpose of determining whether he should be discharged before his expiration term of service. 6. The applicant's commander notified the applicant on 1 February 1982 that he had initiated actions to separate him from service under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct – frequent incidents of a discreditable nature with civil or military authorities. 7. The applicant consulted with counsel on 11 March 1982 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He further acknowledged his understanding and he elected consideration of his case before a board of officers and personal appearance before a board of officers. He elected not to provide a statement in his own behalf. 8. Subsequent to this acknowledgement, on 30 March 1982, the applicant consulted with counsel and waived his right to consideration of his case by a board of officers and personal appearance before a board of officers, and declined to submit statements in his own behalf. 9. The separation authority approved the applicant’s recommended separation from service on 8 April 1982, under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct, and directed the issuance of a DD Form 794A (UOTHC Discharge Certificate). 10. The applicant was discharged on 16 April 1982. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b, by reason of misconduct – frequent incidents of a discreditable nature with civil or military authorities. His service was characterized as UOTHC. 11. The Board should consider the applicant's overall record and the statement he provides 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 statement, his record of service, the frequency and nature of his misconduct, the value of the stolen item, and whether to apply clemency. The Board found no in-service mitigation for the misconduct and the applicant provided none; the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of the evidence, the Board determined that the character of service the applicant receive at 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 to amend the decision of the ABCMR set forth in Docket Number AR20100025778 on 21 April 2011. 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 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 3. 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.