BOARD DATE: 10 April 2020 DOCKET NUMBER: AR20190014629 APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge. 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. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), 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 the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was living off-post with a roommate when his roommate took some military property; the stolen property was found in the roommate's Army duffel bag. They advised the applicant his roommate had been offered a chapter 10 (Discharge for the Good of the Service) discharge, and, since the roommate had accepted, they then had to present the applicant with this same option. They also told the applicant, if he did not accept a chapter 10 discharge, they would "pin everything on (him)," and make sure he went to jail. The applicant notes he was just 19 or 20 years old at the time, and he felt alone and bullied by both the Army and his roommate. He was young and scared, and he had no idea what to do; as a result, he felt had no other choice but to accept a chapter 10 discharge. 3. The applicant's service records show: a. On 6 December 1979, the applicant enlisted into the Regular Army for 4 years; he was 18 years old. On completion of initial training, orders assigned him to Fort Knox, KY, and he arrived on 14 April 1980. On 26 August 1980, the applicant's unit sent him on temporary duty (TDY) to Germany; while on TDY, and effective 6 December 1980, his chain of command promoted him to private first class (PFC)/E-3. On or about 19 October 1980, he completed his TDY and returned to Fort Knox. b. On 27 March 1981, the applicant's commander initiated flagging action against him under Army Regulation (AR) 600-31 (Suspension of Favorable Personnel Actions for Military Personnel in National Security Cases and Other Investigations or Proceedings); the stated reason was because the applicant was pending a general court-martial for aiding another person in the theft of a weapon. That same date the applicant was placed in military confinement, but was subsequently released and returned to duty on 31 March 1981. c. The applicant's service records do not include his separation packet, but there is a DD Form 214, which shows, on 21 May 1981, the applicant was discharged under other than honorable conditions; he had completed 1 year, 5 months, and 16 days of his 4-year enlistment contract, and his DD Form 214 further indicates the following additional information: * Items 4a (Grade, Rate, or Rank)/4b (Pay Grade) – PV1 (private/E-1); E-1 * Item 12h (Record of Service – Effective Date of Pay Grade) – 15 May 1981 * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Item 25 (Separation Authority) – chapter 10, AR 635-200 (Personnel Separations – Enlisted Personnel) * Item 28 (Narrative Reason for Separation) – Administrative Discharge – Conduct Triable by court-martial 4. The applicant contends, in effect, his off-post roommate stole military property, and, because he was young and scared, he felt he was bullied into accepting a chapter 10 discharge. a. The absence of the applicant's separation packet prevents a determination of the specific circumstance(s) that led to his discharge; however, despite the unavailability of the applicant's separation packet, and in light of the record copy of his DD Form 214, the Board presumes the applicant's leadership completed his separation properly. This presumption notwithstanding, the version of the military personnel records regulation in effect at the time, AR 640-10 (Individual Military Personnel Records), required all case files associated with a Soldier's separation to be permanently placed in the affected- Soldier's official military personnel file (OMPF). b. During the applicant's era of service, Soldiers charged with Uniform Code of Military Justice (UCMJ) violations, for which a punitive discharge was included as a punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. While the specific charge(s) preferred against the applicant is not available for review, the Manual for Courts-Martial then in effect at the time stated, in Article 77 (Principals), that service members who had aided and/or abetted another to commit a UCMJ offense were subject to the same maximum punishments authorized for the offense committed. Article 121 (Larceny) carried a punitive discharge for stealing property, regardless of the property's value. c. 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: 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, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in- service mitigating factors for the misconduct or that the discharge requested by the applicant was in error. 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 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was 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 1969 (Revised Edition), Table of Maximum Punishments showed Article 77 (Principals) (where service members had aided and/or abetted another to commit a UCMJ offense) were subject to the same maximum punishments authorized for the offense committed. Article 121 (Larceny) carried a punitive discharge as a maximum punishment for stealing property, regardless of the property's value. 4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated Soldiers being separated under other than honorable conditions were to be reduced to the lowest enlisted grade. 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. 6. AR 15-185 (ABCMR), paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which means the Board presumes what the Army did was correct. 7. AR 640-10 (Individual Military Personnel Records), in effect at the time, stated case files for approved separations will be placed in the Soldier's OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014629 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014629 5 ABCMR Record of Proceedings (cont) AR20190014629 4