IN THE CASE OF: BOARD DATE: 9 September 2021 DOCKET NUMBER: AR20210008282 APPLICANT REQUESTS: in effect, an upgrade of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service is characterized as honorable in lieu of under honorable conditions (general) and that his DD Form 214 be digitized and added to the Defense Manpower Data Center (DMDC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); 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 the DD Form 214, he was administratively issued on 22 July 1980 was not digitized and added to the DMDC. 3. The applicant served honorably during active duty for training (IADT) from 28 February to 5 July 1975. He was awarded military occupational specialty 91B (Medical Specialist). On 25 May 1976, he reenlisted in the U.S. Army Reserve (USAR) for 6 years. 4. Special Orders 118, Armed Forces Examining Entrance Station, Boston, MA, dated 9 June 1976, shows he was discharged from the USAR, effective 8 June 1976 in pay grade E-2, for immediate enlistment in the Regular Army (RA). On 9 June 1986, he enlisted in the RA, in pay grade E-2 with a date of rank of 10 May 1975. This was the highest grade that he held. 5. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: * 13 September 1976, for failing to go to his appointed place of duty at the prescribed time on 15 and 16 August 1976; his punishment consisted of 14 days of extra duty (two hours per day) * 19 October 1976, for failing to go to his appointed place of duty at the prescribed time on 4 October 1976; his punishment consisted of 7 days of extra duty (two hours per day) * 1 November 1976, for failing to perform his extra duty on 19 and 20 October 1976; his punishment consisted of a forfeiture of $50 pay * 31 March 1977, for failing to go to his appointed place of duty at the prescribed time on 18 March 1977 and for absenting himself from his place of duty on 22 March 1977; his punishment consisted of a forfeiture of $200 pay (suspended for 60 days), extra duty for 45 days, and reduction from pay grade E-2 to pay grade E-1 * 17 May 1977, for failing to go to his appointed place of duty at the prescribed time on 10 May 1977; his punishment consisted of a forfeiture of $87 pay, extra duty and restriction for 14 days (all suspended for 60 days) 6. On 26 August 1977, a bar to reenlistment was initiated against the applicant. His commander cited the above punishment and that his conduct and efficiency were unsatisfactory. Other factors considered were statements showing he: * Failed to repair on 10 May 1977 * Was absent from the duty section on 18 May 1977 * Missed extra duty on 20 May 1977 * Missed funeral detail on 19 July 1977 * Absented himself from his place of duty and disobeyed a lawful order on 25 July 1977 7. He also accepted NJP under the provisions of Article 15, UCMJ on: * 8 November 1978, for failing to go to his appointed place of duty at the prescribed time on 31 October 1978, his punishment consisted of a forfeiture of $98 pay and 14 days of extra duty * 30 November 1978, for being absent without leave (AWOL) from 13 to 27 November 1978; his punishment consisted of a forfeiture of $98 pay, 14 days of extra duty, and restriction (7 days of restriction was suspended until 30 January 1979) 8. A DA Form 2-2 (Record of Court Martial Conviction) shows he was convicted of failure to repair on 29 and 30 November 1978, and on 4, 5, 6, 7, 8, 9, and 11 December 1978. His sentenced was adjudged on 9 March 1979. He was sentenced to a forfeiture of $250 pay and 45 days of restriction. On 4 April 1979, the sentence was approved. 9. On 10 April 1979, his bar to reenlistment was reviewed, and it was recommended that due to his substandard performance of duty, poor conduct, and efficiency, the bar should not be removed. 10. Additionally, he accepted NJP under the provisions of Article 15, UCMJ, on: * 10 April 1979, for wrongfully having in his possession [some amount] of marijuana on 21 March 1979; his punishment consisted of a forfeiture of $50 pay * 11 May 1979, for breaking restriction on 17 March 1979 and for disobeying a lawful order on 14 April 1979; his punishment consisted of a forfeiture of $75 pay and 14 days of restriction * 7 June 1979, for being AWOL from 7 to 8 May 1979 and from 11 to 13 May 1979; his punishment consisted of 14 days of extra duty and restriction 11. The complete facts and circumstances surrounding the applicant’s discharge process are not available for review with this case. However, his record contains a DD Form 214 that was prepared at the time of discharge on 30 July 1979. He was discharged in pay grade E-1. He completed 3 years and 26 days of net active service this period. He also completed 4 months and 8 days of prior active service. Initially his DD Form 214 showed in item 9e (Character of Service) "Other than Honorable Conditions.” 12. On 22 July 1980, his initial DD Form 214 was voided and he was administratively reissued a DD Form 214 showing in: * Item 24 (Character of Service) – “Under Honorable Conditions” * Item 25 (Separation Authority) – Chapter 14, Army Regulation (AR) 635-200 * Item 28 (Narrative Reason for Separation) – “Frequent incidents of a discreditable nature with civil or military authorities” * Item 29 (Dates of Time Lost During This Period) – 770110-770111, 770325- 770327, 770503-770503, 781113-781126, 781208-781210, and 790511- 790513 13. AR 635-200 states Soldiers are subject to separation action for a pattern of misconduct consisting of discreditable involvement with civil or military authorities. Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. 14. The DMDC is the central access point for information and assistance on Department of Defense entitlements, benefits, and medical readiness for uniformed service members, veterans, and their families. The ABCMR does not have authority to add documents to the DMDC. If he desires access to the DMDC or to have documents added to the DMDC, he should contact the DMDC at: https://www.dmdc.osd.mil/. 15. In reaching its determination, the Board can consider the applicant’s petition, his contention, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, his bar to reenlistment, 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 and the applicant 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 the character of service the applicant received upon separation as shown on his reissued DD Form 214 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 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. AR 635-200 set forth the basic authority for the administrative separation of enlisted personnel. 4. AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general (under honorable conditions) or an honorable discharge may be granted. a. Paragraph 14-12b [currently, in effect] addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army Regulations, the civilian law and time-honored customs and traditions of the Army. b. 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. c. 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. 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. 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// ABCMR Record of Proceedings (cont) AR20210008282 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1