ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20190006891 APPLICANT REQUESTS: The applicant requests reconsideration of his earlier request to upgrade his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Two DD Forms 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Army Discharge Review Board (ADRB) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 AR20100020551 on 22 February 2011. 2. The applicant states, in effect, he is requesting this upgrade so he can become eligible for Department of Veterans Affairs (VA) benefits. 3. The applicant's service records show: a. He enlisted into the Regular Army for a 3-year term on 8 November 1984. Following initial training, orders assigned him to Alaska; he arrived on or about 6 April 1985. On 16 April 1985, he extended his expiration term of service by 5 months so he could obtain command-sponsorship for his dependent could accompany him. b. On 16 January 1986, permanent orders awarded him the Army Achievement Medal for meritorious achievement between 1 and 20 December 1985. c. Two times between April and June 1986, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice: * 17 April 1986 – failing to go to his appointed place of duty at the time prescribed * 24 June 1986 – breaking restriction d. At some point prior to 16 July 1987, his chain of command promoted him to specialist four (SP4)/E-4. e. On 17 July 1987, the applicant accepted NJP for being absent from his place of duty between 1300 hours, 16 July and 0900 hours, 17 July 1987. f. On 28 July 1987, the applicant accepted NJP for failing to go to his appointed place of duty; punishment included a suspended reduction in rank from SP4/E-4 to private first class (PFC)/E-3. g. Effective 5 August 1987, his suspended reduction was vacated, based on his absence without leave (AWOL) from 31 July through 3 August 1987. Also on 5 August 1987, the applicant accepted NJP for being AWOL from 1800 hours, 4 August until 0830 hours on 5 August 1987. h. On 14 August 1987, he accepted NJP for being AWOL from 31 July through 3 August 1987 (4 days), and again from 8 through 10 August 1987 (3 days). Punishment included reduction from PFC/E-3 to private/E-1. i. On 24 August 1987, the applicant's commander preferred court-martial charges against him for the following UCMJ violations: * Article 90 (Disobey the Lawful Order of a Superior Commissioned Officer) – disobeying his battalion commander's order to remain in the company area for 45 day, which had commenced on 14 August 1987 * Article 86 (AWOL) – being AWOL from 14 through 23 August 1987 (10 days) * Article 123a (Writing Check without Sufficient Funds with the Intent to Deceive for Anything valued at more than $100) – for checks cashed at the Post Exchange while having insufficient funds and with the intent to defraud (charge sheet shows total of "$1,300," written over a lined out "$1,150") j. On or about 25 August 1987, the applicant's chain of command placed him in pre- trial confinement. In or around this period, the applicant's company commander prepared a personal evaluation form in which he stated: (1) The applicant's duty performance was satisfactory until mid-June 1987. At that time, the applicant began arriving late; the first sergeant (1SG) noted the applicant had a "self-discipline" problem. (2) On 3 August 1987, after the 1SG asked the applicant if he had a drug/alcohol problem, the applicant self-referred himself to Track II (Outpatient Counseling) of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). Since his self- referral, the applicant missed a "plethora" of Track II classes. k. On 31 August 1987, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he stated no one subjected him to coercion and counsel had advised him of the implications of his request; he further acknowledged he was guilty of the charges. He also affirmed he would make restitution in the amount of $1,150, as a condition of his request. The applicant elected to submit a statement in his own behalf, but a copy is not available for review. l. On 3 September 1987, a special court-martial empowered to adjudge a bad conduct discharge was convened to address the charges against the applicant; during the session, the applicant's counsel requested a 2-week continuance and the military judge granted the request. m. On 9 October 1987, the Staff Judge Advocate (SJA) recommended approval of the applicant's request for separation under chapter 10, AR 635-200; the SJA noted the applicant's chain of command did not concur with his recommendation. n. On 14 October 1987, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions; on 19 October 1987, the applicant was discharged accordingly. His DD Form 214 shows he completed 2 years, 10 months, and 28 days of his 3-year and 5 months contracted term of service, with three periods of lost time. He was awarded or authorized the Army Achievement Medal, Army Service Ribbon, Overseas Service Ribbon, and a marksmanship qualification badge. o. On 28 July 2010, he petitioned the ABCMR, requesting an upgraded character of service. (1) He argued he made financial restitution and was never convicted of a crime. He was a dedicated Soldier during his entire enlistment. He was applying because he needed medical care from the VA. (2) The Board denied his request because it found the applicant had not offered a convincing argument, nor had he submitted sufficient evidence to support an upgraded character of service. 4. During his active duty service, the applicant violated the UCMJ; the Manual for Courts-Martial at the time showed the maximum punishment for violations of Articles 90 and 123a each included a punitive discharge. Soldiers charged with UCMJ violations that carried a punitive discharge as a punishment could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. 5. The applicant requests an upgraded character of service so he can become eligible for VA benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for 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 the consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation 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 the 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 :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 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. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. The Soldier was to be given a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 3. The Manual for Courts-Martial, United States, 1984, Maximum Punishment Chart showed Articles 90 and 123a included punitive discharges as part of their maximum punishments. 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. 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. 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) AR20190006891 2 1