ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 10 April 2020 DOCKET NUMBER: AR20190011613 APPLICANT REQUESTS: The applicant requests reconsideration to upgrade his Chapter 10, undesirable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * Congressional Correspondence 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 AR20130001540 on 3 September 2013. 2. The applicant states he was incarcerated because of two other service members’ disagreement and his incarceration was also because of discrimination. He further stated “just bad words with two Army guys saying I am going to kill you." White and black Army guys and the black guys got the bad end of the deal. They all got locked up. 3. On 31 July 1973, the applicant enlisted in the Regular Army. He did not complete training requirements and remained in a trainee status during his active duty service. 4. On 30 January 1974, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 8 to 14 January 1974. 5. On 23 August 1974, the applicant was medically cleared for administrative separation actions. 6. His record contains two statements, dated 9 September 1974. These statements indicate, in pertinent part, on 7 September 1974 a wall locker in the applicant's company had been broken into. The applicant and another Soldier were suspected of having been involved in the incident. The next day, the applicant and two of his associates threatened to kill two other Soldiers if they got into trouble over the wall locker incident. 7. On 10 September 1974, court-martial charges were preferred against the applicant for two specifications of wrongfully communicating a threat to kill two other Soldiers if he got into trouble over the wall locker incident. 8. On 23 September 1974, the applicant consulted with legal counsel and 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. a. Subsequent to receiving this legal counsel and without coercion, he voluntarily requested to be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. b. In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge. The applicant further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 9. On 26 September 1974, his company commander issued a memorandum which recommended approval of the applicant's request for discharge and stated he felt the applicant's acceptance of the chapter 10 discharge indicated guilt and warranted expeditious elimination for the benefit of the unit and the service. The applicant had been pending a chapter 13 separation for unsuitability prior to the charges of communicating a threat. He required constant supervision and went AWOL from 2 to 14 August 1974 while awaiting administrative processing of his chapter 13 separation. Additionally, his commander recommended that he receive an undesirable discharge. 10. On 10 October 1974, the separation authority approved 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 an undesirable discharge, and reduction to private/E-1. 11. On 23 October 1974, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 for the good of the service with an undesirable discharge. He completed 1 year and 9 days of net active service. His DD Form 214 also shows he had “74” days of lost time from 8 to 13 January 1974, 21 June to 1 July 1974, 2 to 13 August 1974, and 9 September to 23 October 1974. The applicant was not awarded a personal decoration. 12. On 3 September 2013, the Army Board for Correction of Military Records (ABCMR) denied his request for an upgrade of his discharge. 13. The applicant contends he was discharged because of discrimination; nevertheless, he provided no evidence and the record contained no evidence that supports his claim. The Board also notes, he neither alleged nor mentioned any acts of discrimination in his previous application to the ABCMR. 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time. a. 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 b. 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. 15. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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, his requested discharge, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh 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. 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 AR20130001540 on 3 September 2013. 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. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time. a. 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 b. 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. 2. 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. //NOTHING FOLLOWS//