IN THE CASE OF: BOARD DATE: 15 June 2022 DOCKET NUMBER: AR20210017060 APPLICANT’S REQUEST: The applicant requests, in effect, reconsideration to upgrade his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-written statement in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20170006856 on 27 June 2019. 2. The applicant states: a. He has never been charged with drugs nor hard labor. This is incorrect. After he left service, he was employed with the National Guard and trained and taught young kids boxing. He had been a boxing coach for over 20 years. Not only did he train kids, he also got them off the street by teaching them from “right to wrong”. He trained boxers and “MMA” fighters who went professional in their careers. He also worked with the Corpus Christi Army Depot for over 40 years. b. He was stationed in Korea in 1978 for one year at Camp Casey and was transferred to the DMZ (Demilitarized Zone) in Panmunjom. (It is obvious that the Board will see that he was in Korea as noted in the letter with dates on it). From there, he was stationed at Fort Hood, Texas. He was doing great in Fort Hood until his stepmom became very ill. He would travel every week to go and see her until she got worst, and he became absent without leave (AWOL). He was discharged for AWOL but never did or was discharged for drugs and/or hard labor. He requested his DD Form 214, and he is still waiting for it. He is giving the military the opportunity to resolve this issue, and if he and the Board cannot resolve this issue, he is being left with no choice but to hire an attorney. c. The Board can request his medical records and it will show he was in Korea. He is requesting that the Board please investigate this matter again, as the Board has the wrong person as far as drugs and hard labor. His medical records will never show he did drugs because he never did and never have in his life. He was never disrespectful to his superiors, to his knowledge. He showed them respect and honor. 3. A review of the applicant's service record shows: a. On 25 October 1974, he enlisted in the Regular Army for a period of 2 years. He held military occupational specialty (MOS) O5E (Voice Radio Operator). b. On 29 September 1976, he was arraigned, tried and convicted by a special court- martial in Germany. Consistent with his pleas, he was found guilty of stealing private electrophone eight track tape player on or about 27 June 1976, and stealing private first class AMH’s “TEAC A450” cassette player on or about 28 June 1976. The applicant was sentenced to be reduced to the grade of private (E-1), to forfeit $100 per month for 4 months, and to be confined at hard labor for 4 months. c. On 15 October 1976, he was honorably released from active duty, in pay grade E-3 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training). His DD Form 214 shows he completed 1 year, 11 months, and 21 days of net active service this period. d. On 26 October 1976, his sentence was approved, but the execution was suspended until 24 October 1976, at which time the sentence was remitted without further action. e. On 15 December 1976, the applicant enlisted in the Texas Army National Guard for a period of 1 year. He further enlisted in the USAR for a period of 6 years on 21 August 1978. 4. On 29 August 1978, the applicant enlisted in the Regular Army for a period of 4 years. He held MOS O5C10 (Radio Teletype Operator). 5. His DA Form 2-1 (Personnel Qualification Record) and Personnel Action forms show his duty status regarding his AWOL and being dropped from his unit’s rolls (DFR) in 1980 for the periods indicated: * 28 January to 4 February (8 days) * 11 February to 12 February (2 days) * 5 March to 12 March (8 days) * 11 April to 14 April (4 days) * 21 April to 22 April (2 days) * 28 April to 29 April (2 days) * 5 May to 18 June (45 days) (DFR) * on 4 June 1980 he was dropped from the rolls for desertion * on 19 June 1980 he returned to duty * 19 June to 8 July (20 days) (DFR) 6. On 6 February 1980, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from his unit at Fort Hood from on or about 28 January 1980 until on or about 4 February 1980. His punishment consisted of extra duty for 7 days, forfeiture of $151, and reduction to the rank/grade of private first class/E-3. 7. On 14 February 1980, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from his unit at Fort Hood from on or about 11 February 1980 until on or about 13 February 1980. His punishment consisted of restriction for 21 days, forfeiture of $296, and reduction to the rank/grade of private/E-2. 8. Summary Court-Martial Order Number 2, dated 2 April 1980, issued by Headquarters Command, Fort Hood, TX, shows the applicant was arraigned and tried by a summary court-martial. Consistent with his plea, he was found guilty of being AWOL from 5 to 13 March 1980. The applicant was sentenced to perform hard labor without confinement for 45 days. His sentence was adjudged on 1 April 1980 and, approved and ordered executed on 2 April 1980. 9. A DA Form 458 (Charge Sheet), dated 11 June 1980 shows he was charged with being AWOL from 5 May 1980 until on or about (no date identified). 10. Orders 151-38, dated 1 August 1980 show he was reduced to the rank/grade of private/E-1 with an effective date of 31 July 1980. 11. Orders 153-19, dated 5 August 1980, issued by Headquarters III Corps and Fort Hood, TX, discharged the applicant on 8 August 1980. 12. The applicant’s record did not contain a complete discharge packet; nevertheless, the DD Form 214 he signed for shows he was discharged on 8 August 1980 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1) for misconduct (frequent incidents of a discreditable nature with authorities). He was given an under other than honorable conditions character of service. His DD Form 214 shows he completed 1 year, 8 months, 9 days of active service during this period with lost time from 28 January to 4 February 1980, 11 to 12 February 1980, 5 to 12 March 1980, 11 to 14 April 1980, 21 to 22 April 1980, 28 to 29 April 1980, 5 May to 18 June 1980, and 19 June to 8 July 1980. The applicant was awarded or authorized the Army Good Conduct Medal. 13. On 27 June 2019, the ABCMR denied the applicant’s request for an upgrade of his discharge and to show his service at the DMZ. 14. On 1 May 2020, the ABCMR voted to grant the applicant’s request to show his service in Korea. He was issued a DD Form 215 (Correction to DD Form 214) adding the Korea Defense Service Medal and “service in Korea 19780908 – 19790909”. 15. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. The applicant’s contentions were reviewed and considered; nevertheless, the evidence shows he was sentenced to “hard labor” twice (once remitted). However, his record was void and silent of a drug charge. b. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. c. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. d. Army Regulation 635-200 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 19. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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, 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 noted the applicant provided no post service reference letters of support that might have mitigated the discharge characterization. The Board found the applicant reenlisted on two separate occasions. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination 2. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his third enlistment period for 1 year, 8 months, 9 days of active service during this period. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge. Therefore, the Board determined there was insufficient evidence to reverse the previous Board decision and denied relief. 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 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 to amend the decision of the ABCMR set forth in Docket Number AR20170006856 on 27 June 2019. 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): Not Applicable REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. The regulation also states: a. 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. 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. 2. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 3. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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) AR20210017060 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210017060 1 ABCMR Record of Proceedings (cont) AR20210017060 1