IN THE CASE OF:  BOARD DATE:  6 April 2020 DOCKET NUMBER:  AR20190013521 


APPLICANT REQUESTS:  The applicant requests the upgrade of his under other than honorable conditions discharge to honorable. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for the Army Discharge Review Board)

.Two letters of support

.Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support ofClaim)

.DD Form 214 (Armed Forces of the United States Report of Transfer orDischarge)



FACTS: 

1.The applicant did not file within the 3-year time frame provided in Title 10 (ArmedForces), United States Code (USC), section 1552 (b) (Correction of Military Records:Claims Incident Thereto).  However, the Army Board for Correction of Military Records(ABCMR) conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states, in effect, he did not understand the discharge at the time.  Heinitially served on active duty in 1964 and was honorably discharged; then, after a breakin service, he reenlisted in 1972.  He faced charges for drinking on duty and, when hisleadership offered him a chance to resign, he accepted.

3.The applicant provides letters of support from his spouse and his pastor; bothdescribe the applicant as someone who struggled with alcohol in the past, but, afterundergoing treatment, has been sober for more than 30 years.  The applicant hasshown himself to be an upstanding person who is industrious and loyal.

4.The applicant's service records show:

a.After obtaining his parent's consent, the applicant enlisted into the Regular Armyfor 3 years on 18 July 1961; he was 17 years old.  While participating in advanced individual training, the applicant's leadership promoted him to private first class  
(PFC)/E-3.  On completion of initial training, orders transferred the applicant to Okinawa, where he arrived on 31 May 1962.   

b.On 25 May 1963, while the applicant was still stationed in Okinawa, a summarycourt-martial convicted the applicant after he pleaded guilty to sleeping while on guard duty.  The court sentenced the applicant to 45 days' hard labor without confinement and reduced him to private (PV2)/E-2.  On 29 May 1963, the convening authority approved only so much of the sentence as provided for 45 days' restriction and reduction to PV2. 

c.On 16 December 1963, the applicant departed Okinawa and was reassigned toFort Bragg, NC; he arrived at Fort Bragg on 22 January 1964. 

d.On 25 June 1964, the applicant was honorably released from active duty for theconvenience of the government and transferred to the U.S. Army Reserve.  His DD Form 214 shows he completed 2 years, 11 months, and 8 days of his 3-year enlistment contract and was awarded or authorized the Parachutist Badge. 

e.On 22 December 1972, the applicant enlisted into the Regular Army for a 3-yearterm.  Orders assigned him to Fort Polk, LA for initial training; on 13 April 1973, after completing basic combat training, he remained at Fort Polk and was assigned for duty at a training unit.  Effective 6 June 1973, the applicant's Fort Polk chain of command promoted him to private first class (PFC)/E-3. 

f.At some point prior to 14 January 1974, the applicant's commander preferredcourt-martial charges against him for being drunk on sentinel duty, committing assault and battery, and attempting to bribe military policemen.  On 14 January 1974, after consulting with counsel, the applicant 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 hewas making this request of his own free will and no one had subjected him to coercion;in addition, counsel had fully advised him that the contemplated trial by court-martialcould result in a bad conduct or dishonorable discharge.  The applicant submitted thefollowing personal statement:

(1)He had enlisted for 3 years during this current term of service and completedinitial training at Fort Polk.  He had previously served in the Army from 1961 to 1964; during that period, he had been awarded the Parachutist Badge and was stationed in Okinawa. 

(2)He was requesting this discharge because of his inability to work with thepresent company commander; he maintained, if he had been given the opportunity to transfer, he would probably not have gotten into trouble. 

g.On 16 January 1974, the applicant's battalion commander recommendedapproval of the applicant's separation request.  The battalion commander noted the applicant's immediate supervisor and commander had both counseled the applicant on numerous occasions for committing infractions.  Given the applicant's past record of misconduct, demonstrated unreliability, and defective attitude, the battalion commander recommended the separation authority issue the applicant an undesirable discharge. 

h.On 22 January 1974, the separation authority approved the applicant's requestand directed the issuance of an Undesirable Discharge Certificate; in addition, the separation authority ordered the applicant's reduction to private/E-1.  On 25 January 1974, the applicant was discharged accordingly; his DD Form 214 shows he completed 1 year, 1 month, and 3 days of his 3-year enlistment contract; he was awarded or authorized the National Defense Service Medal and a marksmanship qualification badge. 

5.The applicant essentially argues, when he accepted his discharge, he did not fullyunderstand what it meant to have an undesirable discharge under other than honorableconditions.  In effect, while on active duty, he had had an alcohol problem, but has sinceundergone treatment and has been sober for more than 30 years.  He provides lettersof support that affirm he has turned his life around.

a.During the applicant's era of service, Soldiers charged with Uniform Code ofMilitary Justice (UCMJ) violations, for which a punitive discharge was a punishment, could voluntarily request separation in-lieu of trial by court-martial under chapter 10, AR 635-200.  According to the Manual for Courts-Martial (MCM) then in effect, a punitive discharge was an available punishment for the UCMJ violations pertaining to being drunk on duty and for attempted bribery (attempting to commit a UCMJ offense carried the same punishment as the crime attempted).  

b.In reaching its determination, the Board can consider the applicant’s petition, hisarguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 

BOARD DISCUSSION: 

1.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted.  The Board carefully considered the applicants request,supporting documents, evidence in the records and published DoD guidance forconsideration of discharge upgrade requests.  The Board considered the applicant'sstatement, his record of service, the frequency and nature of his misconduct, thepreferral of charges, his request for discharge and the reason for his separation.  TheBoard found insufficient evidence of in-service mitigating factors for the misconduct; theBoard considered the letters of support the applicant provided, but found that evidence
of post-service achievements insufficient 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. 

2.Prior to closing the case, the Board did note the analyst of record administrativenotes below, and recommended the correction be completed to more accurately depictthe military service of the applicant.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: XXX :XXX :XXX DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

Except for the correction addressed in Administrative Note(s) below, the Board found 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. 
XCHAIRPERSON

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): 

1.AR 635-5 (Separation Documents), in effect at the time, stated the DD Form214 was to list all decorations, service medals, campaign credits, and badges awardedor authorized.  The applicant's service record contains a DD Form 214, ending on
25 June 1964, which shows the award of the Parachutist Badge; this award is missing from his DD Form 214 for the period ending 25 January 1974. 

2.As a result, amend the applicant's DD Form 214, ending on 25 January 1974, byadding the Parachutist Badge.

REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within 3 years after discovery of the alleged error or injustice.  Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.

2.AR 635-200, in effect at the time, prescribed policies and procedures for enlistedadministrative separations.

a.Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was aseparation with honor.  Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance.  A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court-martial conviction. 

b.Paragraph 1-9e (General Discharge).  A general discharge was a separation fromthe Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. 

c.Chapter 10 permitted a Soldier to request discharge for the good of the servicewhen they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment.  The Soldier could submit such a request at any time after court-martial charges were preferred.  Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 

3.The Manual for Courts-Martial (MCM), United States 1969 (Revised Edition), Tableof Maximum Punishments showed that a punitive discharge was an availablepunishment for the following UCMJ offenses:  Article 112 (Found Drunk on Duty) andArticle 134 (General Article – Offering a Bribe); regarding Article 80 (Attempts), theMCM stated anyone found guilty of attempting to commit a UCMJ offense was subjectto the same maximum punishment authorized for the offense attempted.

4.  AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-26b (3) (Reduction Authority and Reasons – Reasons for Reduction – Approved for Discharge from Service with an Undesirable Discharge) that Soldiers approved for administrative separation with an undesirable discharge under other than honorable conditions were to be reduced to private/E-1 prior to discharge. 
 
5.  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. 
 
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