IN THE CASE OF: BOARD DATE: 15 November 2019 DOCKET NUMBER: AR20190009777 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 AC87-10293 on 28 September 1988. 2. The applicant states, in effect, his discharge was inequitable because it was based on a single, isolated incident that occurred after he had served honorably for more than 28 months. He contends he is now a "role model citizen," and credits the Army with shaping him into the gentleman he is today. The misconduct that led to his discharge does not represent who he really is, and he asks the Board to take into consideration that he has changed for the better. 3. The applicant's service records show: a. On 26 August 1982, he enlisted into the Regular Army for a 3-year term. After completing of initial training, orders assigned him to Germany; he arrived on 10 February 1983. Effective 1 July 1984, his chain of command in Germany promoted him to specialist four (SP4)/E-4. b. In or around August/September 1984, permanent change of station (PCS) orders reassigned the applicant from Germany to Fort Bragg, NC, with temporary duty at Fort Benning, GA to complete Basic Airborne training. Effective 12 October 1984, Permanent Orders (PO) awarded the applicant the Parachutist Badge; the applicant then continued his relocation to Fort Bragg, NC and arrived on 19 October 1984. c. On 27 February 1985, he immediately reenlisted for 5 years. On 18 September 1985, PO awarded the applicant the Army Good Conduct Medal (1st Award) for the period 26 August 1982 through 25 August 1985. d. On 21 September 1985, the applicant and another Soldier got into an argument about what program to watch on a dayroom television; the incident escalated and a staff sergeant (SSG) intervened. The applicant and the SSG (SSG H__) then got into a physical altercation, which resulted in the applicant stabbing/cutting the SSG in the chest, hand, and leg; according to one witness (SP4 A__), the knife had a 5-inch blade, but the SSG's leg wounds were shallow because the applicant held the knife so that just the tip of the blade made cuts. As the SSG and the applicant were being separated, the applicant kicked the SSG in the face. e. On 7 October 1985, the applicant's Fort Bragg commander preferred court- martial charges against him for two specifications of Article 128 (Assault), Uniform Code of Military Justice (UCMJ): * Cutting and stabbing SSG H__ in the leg, hand, and chest with a knife; and using a degree of force that was likely cause grievous bodily harm * Striking SSG H__ in the face with his (the applicant's) foot f. On 28 October 1985, 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 affirmed no one subjected him to coercion and counsel had advised him of the implications of his request. He also acknowledged he was guilty of the charge. He elected to submit a statement in his own behalf and provided the following: The applicant apologized for what he had done, and indicated he was in the wrong place at the wrong time. He maintained, in effect, he was a good and outstanding Soldier who had achieved a number of significant accomplishments; these included the awards of a military occupational specialty and the Army Good Conduct Medal, along with the successful completion of both the Basic Leadership School and Basic Airborne training. He further highlighted that he had served in Germany and then reenlisted for a 5-year term. g. On 3 November 1985, he accepted nonjudicial punishment under Article 15, UCMJ, for wrongful use of marijuana; punishment included reduction from SP4 to private first class/E-3. h. On 15 November 1985, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions; in addition, he ordered the applicant's rank reduction to private/E-1. On 5 December 1985, the applicant was discharged accordingly; his DD Form 214 showed he completed 9 months and 9 days of his second enlistment. His DD Form 214 also listed the following: (1) He was awarded or authorized: * Army Good Conduct Medal (1st Award) * Army Service Ribbon * Overseas Service Ribbon * Parachutist Badge * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) (2) The remarks section reflected his immediate reenlistment. 4. Although not required at the time, later versions of AR 635-5 (Separation Documents) mandated the inclusion of remarks when separating Soldiers received a less than honorable character of service, the regulation required the addition of the following remark: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." 5. The applicant essentially asserts his separation was inequitable because it was based on a single, isolated incident, and despite his more than 28 months of honorable service. He contends he is now a "role model citizen," and credits the Army with shaping him into the man he is today. a. Per the Manual for Courts-Martial (MCM), in effect at the time, the maximum punishments for Article 128 (Assault with a Dangerous Weapon Likely to Produce Grievous Bodily Harm (not using a firearm) and Assault upon a noncommissioned officer Not in Execution of Office) included punitive discharges as a maximum punishment. Soldiers charged with UCMJ violations, for which a punitive discharge was an available punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and offered in-lieu of trial by court-martial. b. 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 of service, his immediate reenlistment, the frequency and serious nature of his misconduct and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post- service achievements with his statement 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. The Board concurs with the correction stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected as shown in the Administrative Note(s) that follow. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of the character of service the applicant received upon separation. 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): A review of his records provides pertinent information according to Army Regulation 635-8 to be included on his DD Form 214 is missing; as a result add to item 18 (Remarks) "Continuous Honorable Active Service from 26 August 1982 to 25 February 1985." 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. 2. The Manual for Courts-Martial, United States, 1984, Maximum Punishment Chart showed Article 128 (Assault with a Dangerous Weapon Likely to Produce Grievous Bodily Harm (not using a firearm) and Assault upon a noncommissioned officer Not in Execution of Office) included punitive discharges as a maximum punishment. 3. 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. 4. AR 635-5 prescribed policies and procedures for the preparation of the DD Form 214. Effective with Interim Change Number 1, dated 2 October 1989, separating Soldier who received a less than honorable character of service were required to have item 18 (Remarks) show the following comment: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190009777 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009777 6 ABCMR Record of Proceedings (cont) AR20190009777 5