IN THE CASE OF: BOARD DATE: 10 March 2020 DOCKET NUMBER: AR20190013457 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AC83-11122 on 20 June 1984. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 16 August 2019 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 11 February 1972 * DD Form 214 (Report of Separation from Active Duty), for the period ending 27 May 1976 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 7 March 1980 * Special Orders Number 190, issued by Headquarters, U.S. Army Training Center, Infantry and Fort Polk, Fort Polk, Louisiana on 15 July 1970 * DA Forms 87 (Certificate of Training) * two Letters of Appreciation, dated 14 September 1976 * Permanent Orders 11-3, issued by Headquarters, 2nd Infantry Division on 21 January 1977 * Orders 106-52, issued by Headquarters, 2nd Infantry Division on 1 June 1977 * Standard Forms (SF) 180 (Request Pertaining to Military Records), dated 26 July 2019 and 30 July 2019 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 AC83-11122 on 20 June 1984. 2. The applicant states the following: a. In 1978, while acting in self-defense, he was charged with 2nd degree murder. After 74 days of incarceration, he was released on bail. While on bail, he attended his court appearances and resumed his job as a squad leader at Fort Polk, LA. In 1980, possibly the month of January, he picked up a young Caucasian woman, offered her a ride, and she accepted. There was a knife on his passenger seat, which he placed in the glove box. While he was driving, they talked about sex. He asked if he could have sex with her and she said yes. He drove to a deserted road and they had sex. After about an hour, he drove her near her house and dropped her off. She told him she would like to see him again. Approximately one month later, he stopped by the bar she worked at and gave her his name and telephone number. Shortly after, he was arrested by military detectives. b. He was brought back to the Vernon Parish Jail in Leesville, LA. A couple days later, he was taken to Fort Polk. He was told that he was attending an Article 32 investigation. Once he told his story about the events noted above, they brought the young lady in, accompanied by her husband. She told a different story. He was then returned to the jail. c. He states he never heard anything more about this. The supply sergeant came to the jail and asked if he wanted any of his personal items brought to him before they shipped everything back to his home of record in Baltimore, MD. He requested several items. When the requested items were brought to him, he went through them and found a DD Form 214 showing he had been court-martialed for rape. He does not think this was fair to him. He was never brought back to Fort Polk. After his second degree murder trial, he was sentenced to 10 years on the charge of manslaughter (when he was acting in self-defense after being shot at). He believes the Army gave him a bad deal and somehow saw fit that he was given time because of a trumped up rape charge. d. He is submitting his documents of military training and two letters of commendation. He also received two Army Good Conduct Medals from serving two tours in the Republic of Korea in 1973 and 1976. 3. The applicant was inducted into the Army of the United States on 13 March 1970. 4. The applicant accepted non-judicial punishment on 19 April 1971, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for violating a lawful general regulation by carrying a concealed weapon (a stiletto), on or about 10 April 1971. 5. The applicant was discharged on 11 February 1972, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and Department of the Army (DA) Message 102035Z, Separation Code (SPN) 21L, separation for good and sufficient reason when determined by secretarial authority. He was transferred to the U.S. Army Reserve. The relevant DD Form 214 he was issued confirms his service was characterized as honorable and he was awarded the Army Good Conduct Medal (AGCM). 6. The applicant enlisted in the Regular Army on 24 August 1972. 7. The applicant accepted non-judicial punishment on 18 August 1975, under the provisions of Article 15 of the UCMJ, for absenting himself from his unit without authority (AWOL), from on or about 11 August 1975 through on or about 13 August 1975. 8. The applicant was honorably discharged on 27 May 1976 for the purpose of immediate reenlistment. He reenlisted in the Regular Army on 28 May 1976. 9. The applicant was awarded the AGCM (2nd Award) on 21 January 1977. 10. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the UCMJ, on two additional occasions: * on 5 March 1977, for unlawfully striking another individual in the face with his fist, on or about 2 February 1977 * on 18 August 1978, for being AWOL, from on or about 30 May 1978 through on or about 6 June 1978 11. The applicant was charged with 2nd degree murder and confined by civil authorities in Leesville, LA, on or about 2 January 1979. He was released on bond on or about 25 January 1979. While awaiting trial for the 2nd degree murder charge, he was charged with rape and assault with a deadly weapon. His bond was revoked on or about 10 August 1979, and he was incarcerated in the Vernon Parish Jail. 12. Court-martial charges were preferred against the applicant for violations of the UCMJ. However, the relevant DD Form 458 (Charge Sheet) is not available for review. 13. The applicant's commander recommended a Bar to Reenlistment by reason of the applicant's pending general court-martial charges for rape and assault with a deadly weapon. The commander indicated the applicant was counseled on 19 December 1979 but refused to sign. The bar was approved on 7 January 1980. 14. The applicant consulted with legal counsel on or about 21 February 1980. 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 a UOTHC 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, 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. It is unclear whether or not he elected to submit a statement. However, there is no statement available for review within the service record. 15. The separation authority approved the applicant's request for discharge on 29 February 1980, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and directed that he be reduced to the lowest enlisted grade and discharged UOTHC. 16. The applicant was discharged on 7 March 1980, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. His DD Form 214 confirms he was discharged in the lowest enlisted grade, and his service was characterized as UOTHC. 17. 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. 18. The applicant petitioned the Army Discharge Review Board (ADRB) for a review of his discharge proceedings. The ADRB considered his request and determined he was properly discharged, and denied his request for relief. The applicant was notified of this determination on 22 February 1982. 19. The applicant petitioned the ABCMR for an upgrade to his service characterization. The applicant's counsel contended the applicant received inadequate counseling, was denied due process during the Article 32 hearing, and his waiver of rights was invalid. The Board considered the request on 20 June 1984, determined there was insufficient evidence to indicate probable material error or injustice and denied his request for relief. 20. The Board should consider the applicant's statement 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, his civil incarceration, a bar from reenlistment, the charges against him, his request for discharge and the reason for his separation. The Board considered previous ADRB and ABCMR considerations. After a thorough review, the Board found insufficient evidence of in-service mitigation to overcome the applicant’s serious misconduct and he provided no evidence of post- service achievements 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. 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 : : : 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 AC83- 11122 on 20 June 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. REFERENCES: 1. Title 10, U.S. Code (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, in effect at the time, set 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 10 of that regulation provides, in pertinent part, 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, a discharge under other than honorable conditions is normally considered appropriate. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190013457 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013457 7 ABCMR Record of Proceedings (cont) AR20190013457 6