ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 March 2022 DOCKET NUMBER: AR20210010169 APPLICANT REQUESTS: The applicant requests upgrade his under other than honorable conditions discharge to honorable. 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 three-year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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, in effect, there were no charges filed against him. He was released from incarceration; however, the military released him anyway. He lost all of his military records. 3. On 16 August 1976, the applicant, at the age of 17 years old, enlisted in the US Army Reserve (USAR) delayed entry program (DEP) for a period of 6 years. There was no evidence of a parental waiver for the applicant to enlist prior to being 18 years old. On 19 August 1976, he was discharged from the USAR DEP and entered active duty for a period of 3 years. There was no evidence in the applicant's service record showing when he entered basic training or advanced individual training. 4. On 17 December 1977, the applicant accepted nonjudicial punishment (NJP) for violating a lawful general regulation. His punishment included reduction to the grade of Private/E-2 (PV2), and forfeiture of $225 per month for two months. The applicant did not appeal the punishment. 5. On 20 February 1978, his duty status was changed from present for duty (PDY) to confined by civil authorities. He had been apprehended for driving under the influence and auto theft. On 1 March 1978, his duty status was changed from confined by civil authorities to PDY. He had been released on bon and had been confined for 12 days. 6. On 2 March 1978, his duty status was changed from PDY to absent without leave (AWOL). On 2 March 1978, his duty status was further changed from AWOL to confined by civil authorities. He had been apprehended and was pending trial. 7. On 29 April 1978, the applicant's duty status was changed from confined by civil authorities to PDY. He had been let out on bond and was pending trial. 8. On 17 May 1978, his duty status was changed from PDY to confined by civil authorities. He was apprehended pending disposition of charges. On 23 May 1978, his duty status was changed from civilian confinement to PDY. He had payed his fine and was released back to duty. 9. On 26 May 1978, a document shows the applicant was cited for driving while intoxicated and unauthorized use of a moveable. He was present with counsel and changed his pleas of not guilty to guilty. The court accepted the pleas and fined the applicant to two mon in jail suspended except for time served $100 plus court costs or 30 days in jail, and unsupervised probation for 6 months. 10. On 10 March 1979, a document shows the applicant was accused of possession of marijuana. He waived his right to counsel and entered a plea of guilty. He was sentenced to pay a fine of $250 plus court costs. 11. On 2 April 1979, a Bar to Reenlistment Certificate was completed and shows: a. The applicant received NJP on 17 December 1977 and was reduced to PV2 and forfeiture of $225 for 2 months. b. He had lost time of 73 days. On 20 February 1978 he was apprehended by civilian authorities and charged with unauthorized use of a moveable. He was released on 1 March 1978. c. On 2 March 1978, he was apprehended by civilian authorities, while in AWOL status and charged with criminal mischief, being drunk, and illegally carrying weapons. He was released on bond on 29 April 1978. d. On 17 May 1978, he was apprehended by civilian authorities on two counts of contempt of court for failing to appear for previous charges. The weapons charge was dismissed and he was fined $23.50 for each contempt of court and he forfeited his bond of $38.50 each for criminal mischief and the being drunk charge. He was released on 23 May 1978. e. On 8 January 1979, he was found in the men's room of a lounge in the possession of marijuana. He was arrested and transported to jail, booked, and was released on bond. f. The applicant indicated he had been furnished a copy of the commander's recommendation for a bar to reenlistment and desired to make a statement on his own behalf; however, the statement was no available for the Board's review. 12. On 6 April 1979, he accepted NJP for sleeping on guard duty. His punishment included reduction to the grade of private first class (PFC), suspended; 14 days' extra duty and restriction; and forfeiture of $115. The applicant did not appeal the punishment. 13. On 18 April 1979, a statement was completed by an Artillery Inspector, which states in effect the applicant had at various times been an asset to the author in accomplishing the mission. He had volunteered his help to the author in making initial and final inspections of various types or equipment where two men were essential in making the inspections. He was always willing to lend a hand when he saw someone needing assistance around the shop. It was always a pleasure for the author to see a man who was willing to work, regardless of the task and who would, on his own initiative, start, work, and finish a task. The author believed the applicant could be an asset to the Army and to the Maintenance Division, if he had given proper guidance. 14. On 27 April 1979, the applicant completed a self-authored statement, which states in effect he was asking great thought to be given to his bar to reenlistment. From his point of view, he was just as qualified as the next man. He knew his job well and did did his job well. He thought he could be of some use to the US Army. He did not his share of work and then some. He knew he had his problems in the two years he'd been in the Army and paid for everyone of them and that's why he was asking for reconsideration of the bar. He was going to improve on his Soldiering. 15. On 27 April 1979, a Staff Sergeant (SSG) made a statement, in effect, the applicant had always performed his job in a professional manner. His technical know how was not surpassed by many of his contemporaries. The authors knew the applicant had problems in the past, but the author talked to him and felt he was telling the truth about being a good Soldier from that point forward. The applicant never gave the author any problems on the job. When he was finished with one job, he went right to the next without being told to do so. The author felt the applicant would be a benefit to the United States Army and the author would like to keep him in his platoon. 16. On 27 April 1979, a SSG made a statement, in effect, in his opinion the applicant knew his job and accomplished the job with the minimum amount of supervision. With the proper guidance he, in time, could be noncommissioned officer (NCO) material. There was no doubt in the SSG's mind that the applicant could do the job know matter what it was. The SSG felt the applicant was a benefit to the US Army. 17. On 4 May 1979, a military police report shows the applicant was a subject in an investigation, wherein he and another individual broke into a house and stole two stereo speakers and a bottle of whiskey. The applicant was arrested and incarcerated on a warrant. The case was referred to civil liaison. 18. On 9 May 1979, the applicant's commander advised him of his intent to separate him for misconduct, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 because of his frequent incidents of discreditable nature with civil or military authorities. The applicant had been counseled on numerous occasions for several different infractions. He had shown no self improvement. Repeated incidents with civil authorities had resulted in him being placed in confinement for his acts of misconduct. 19. The applicant's chain of command recommended approval of the Bar to Reenlistment. On 23 May 1979. The Bar to Reenlistment was approved. 20. On 1 July 1979, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action; he requested to have his case considered by a board of officers, to appear before the board of officers, and to be represented by counsel. He elected not to submit a statement in his own behalf. 21. A civilian court document shows the applicant was charged with: * contempt of court on two occasions * disturbing the peace by being drunk * criminal mischief * illegal weapon * disobeying stop sign 22. The applicant's chain of command recommended approval of the elimination. 23. On 15 June 1979, a statement of counseling in support of administrative action was completed by the applicant's commander and shows the applicant was counseled on: * 13 April 1979 for sleeping on guard duty * 16 February 1979 for not shaving and shining his boots * 1 February 1979, 1 December 1978, 30 November 1978, and 3 August 1978 for missing morning formation 24. On 23 July 1979, the applicant was notified to appear before a board of officers regarding his separation. The applicant acknowledged notification to appear before the board. 25. On 8 August 1979, the applicant received a letter of appreciation for the job he had done as a member of his unit. 26. On 13 August 1979, a Board of Officers was convened regarding the applicant's elimination action. The board found the applicant should be discharged from active-duty service and recommended an under other than honorable conditions discharge certificate. 27. On 6 September 1979, the appropriate approval authority approved the elimination of the applicant, issued him an under other than honorable conditions discharge, and reduced the applicant to the lowest enlisted grade. 28. On 20 November 1979, the applicant was discharged accordingly. His DD Form 214 shows he had completed 2 years, 6 months, and 20 days of active-duty service this period. He had lost time from 20 February 1978 to 28 February 1978, 2 March 1978 to 28 April 1978, 17 March 1978 to 22 May 1978, and 3 May 1979 to 19 November 1979. He was awarded or authorized the Expert Marksmanship Badge (M16). 29. The applicant is requesting an upgrade of his discharge stating no charges were filed against him and he was released from incarceration and then released from the military. a. Army Regulation 635-200 required commanders to identify Soldiers for discharge when they displayed a pattern of misconduct; this included Soldiers who were involved in frequent incidents of a discreditable nature with civil or military authorities. b. In reaching its determination, the Board can consider the applicant's petition, her service record, and her statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that show honorable conduct that might have mitigated the discharge characterization. 2. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his first enlistment period The Board found the applicant had frequent incidents of discreditable nature with civil or military authorities. The applicant had been counseled on numerous occasions for several different infractions. He had shown no self-improvement. Repeated incidents with civil authorities had resulted in him being placed in confinement for his acts of misconduct. 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. Therefore, relief was denied. 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. 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. 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. Commanders identified Soldiers for discharge when they displayed a pattern of misconduct; this included Soldiers who were involved in frequent incidents of a discreditable nature with civil or military authorities. An under other than honorable conditions character of service was normally issued for Soldiers discharged under this provision. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010169 1 1