IN THE CASE OF: BOARD DATE: 7 September 2022 DOCKET NUMBER: AR20220001121 APPLICANT’S REQUEST: an upgrade of his undesirable discharge under other than honorable conditions to a general discharge under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * College Enrollment Verification * Three letters of support 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 that things have changed in recent years for Veterans, and he feels that because he served his country, he should be afforded the same opportunities granted to other Veterans. The applicant provides additional arguments and information in a self-authored statement, stating, in effect: a. The applicant affirms his personal identifying information and states he enlisted into the Army in the 8th month, on the second day, in 1975. He attended basic combat training at Fort Jackson, SC, and advanced individual training on Fort Polk, LA. His first military appointment was to South Korea, where he served under Captain (CPT) in an infantry battalion. b. While assigned in Korea, the applicant carried out all assignments and was an eager and very zealous Soldier; he never failed a challenge and always rose to the occasion. However, for some unknown reason, the applicant’s team leader did not take a liking to him. The applicant notes his team leader was 6’ 4” tall and weighed over 200 pounds; by contrast, the applicant was only 5’ 8” and weighed about 145 pounds. This is significant because they later accused the applicant of being disrespectful in language towards this team leader, although the exact words of disrespect were never quite clear; in fact, by the accuser’s own statement (or words to that effect), he was unsure what, if anything, was said. c. “Because I found myself in a situation, which I believed I had no fight, nor did I know how to defend against it. And so, I just went with it.” In hindsight, the applicant now feels he should have fought harder for his career, but he was just a 19-year-old boy from the streets of , and while he calls no one a racist, he believes he might have had a better chance of sustaining his career if he been mature enough to get along better with other ethnic groups within his unit. Unfortunately, the applicant states he “became a product of my environment, of which I spiraled out of control.” d. The applicant concludes that putting him out of the service was a miscarriage of justice; the chapter 10 should never have happened (referring to chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel)). He argues, “Even when you weighed the reasoning, I can’t see the justification, without trial, to have terminated my military career.” The applicant asks the Board to upgrade his discharge to a more favorable result. 3. The applicant’s service records show: a. On 26 August 1975, the applicant enlisted into the Regular Army for 3 years; he was 18-years-old. Upon completion of initial entry training and the award of military occupational specialty 11B (Infantryman), orders assigned him to an infantry battalion within the 2nd Infantry Division in Korea; he arrived at his unit, on 14 January 1976. b. On 10 May 1976, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to report at the appointed time to the unit’s 0830 morning parade formation. c. On or about 14 June 1976, Sergeant (SGT) , acting platoon sergeant, wrote a statement about an incident involving the applicant: (1) At about 0930 hours, on 14 June 1976, and as SGT was escorting the applicant to the camp’s education center, the applicant remarked, “I’m going to kick your a__ sooner or later. I’m going to wait until you f__-up, and then I’m going to get your a__.” SGT asked why the applicant thought it was necessary to “get my a__,” to which the applicant responded, “You and that big faggot friend of yours are picking on me, but I’ll get both of your a__es.” SGT tried to explain that both he and the applicant’s squad leader were only expecting the applicant to perform in accordance with Army standards. (2) As they left the education center, SGT told the applicant to meet him in the barracks at 1300 hours to continue processing his paperwork; SGT also stated the applicant needed to be in duty uniform. The applicant seemed to be ignoring what SGT was saying, so SGT asked if the applicant fully understood; the applicant answered, “I hear you, faggot.” SGT ignored the remark and returned to the company Orderly Room. d. On 14 June 1976, the applicant’s company commander (CPT ) offered the applicant NJP for having been disrespectful in language toward SGT on 14 June 1976, when the applicant said, “I hear you, faggot.” On 18 June 1976, the applicant indicated he was demanding trial by court-martial, on the DA Form 2627 (Record of Proceedings under Article 15, UCMJ). e. On 23 June 1976, the applicant's chain of command preferred court-martial charges against him for violating UCMJ Article 91 (Being Disrespectful in Language toward a Noncommissioned Officer (NCO), while the NCO was Executing his Office). The charge specifically alleged that, on 14 June 1976, the applicant had been disrespectful in language toward SGT by saying, “I hear you, faggot.” f. On 18 July 1976, four NCOs prepared statements alleging the applicant committed misconduct: (1) SGT stated that, while he was showering, on 18 July 1976, he saw the applicant take the billfold from his (SGT ) trousers and go to the back of the latrine. SGT left the shower and, as he started toward the back of the latrine, he saw Staff Sergeants (SSGs) and standing there talking. SGT told them what he had seen, and they all went to find the applicant. When they encountered the applicant, the applicant handed back billfold to SGT . SGT checked to see if anything was missing and then asked why the applicant had taken the billfold; the applicant claimed he had found it. SGT and the two other NCOs escorted the applicant to the company executive officer (XO) and, after the XO read the applicant his rights, the applicant admitted to taking the billfold. (2) Both SSG and corroborated SGT version of events. SSG affirmed witnessing the XO read the applicant his rights, the applicant acknowledging that he understood his rights, and the applicant then giving information about what had occurred. g. On 19 July 1976, the applicant's chain of command preferred an additional court- martial charge against him for violating UCMJ Article 121 (Larceny of Property Valued at $50 or less); the charge accused the applicant of stealing SGT wallet, valued at about $5.00. h. On 27 July 1976, after consulting with counsel, the applicant requested discharge in-lieu of trial by court-martial under chapter 10, AR 635-200. In his request, the applicant affirmed no one had subjected him to coercion, that his counsel had advised him of the implications of his request. The applicant elected not to submit a statement in his own behalf. i. On 29 July 1976, the separation authority approved the applicant’s separation request and directed his undesirable discharge under other than honorable conditions; additionally, the separation authority ordered the applicant’s reduction to the lowest enlisted grade. On or about 1 August 1976, the applicant transferred from Korea to Oakland, CA for final outprocessing; on 2 August 1976, orders discharged the applicant accordingly. The applicant’s DD Form 214 shows he completed 11 months and 7 days of his 3-year enlistment contract; he was awarded, or authorized, a marksmanship qualification badge. j. With his current application, the applicant provides evidence he graduated with honors when he earned State College certifications/degrees in Barbering and Music Technology/Audio Recording. Additionally, the applicant submits three letters of support, which describe the applicant as a thoughtful student, a talented singer, and an active member in good standing within his church. 4. 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. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. b. The Manual for Courts-Martial (MCM), in effect at the time, stated a punitive discharge was one of the authorized punishments for violations of UCMJ Article 121 (Larceny of Property Valued at $50 or less); the maximum punishment for Article 91 (Being Disrespectful in Language toward a Noncommissioned Officer (NCO), while the NCO was Executing his Office) was 3-months’ confinement and forfeiture of two- thirds’ pay for 3 months. 5. 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 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. The Board applauds the applicant for all the accomplishments he has achieved and letters of support for the Board to weigh a clemency determination. However, 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. 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 and denied relief. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X XC 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): 1. AR 635-5 (Separation Documents), in effect at the time, instructed DD Form 214 preparers to list all authorized awards and decorations. 2. AR 600-8-22 (Military Awards), currently in effect, states the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or for 60 nonconsecutive days. The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. 3. The applicant served in Korea from 19760107 until 19760801. As such, amend his DD Form 214, ending 2 August 1976, by adding the Korea Defense Service Medal. 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 enlisted administrative separations. a. Paragraph 1-9e (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. b. Chapter 10 permitted a Soldier to request discharge for the good of the service when 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 a general discharge, if warranted. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments, showed a punitive discharge was an available maximum punishment for violations of UCMJ Article 121 (Larceny of Property Valued at $50 or less); the maximum punishment for Article 91 (Being Disrespectful in Language toward a Noncommissioned Officer (NCO), while the NCO was Executing his Office) was 3-months’ confinement and forfeiture of two-thirds’ pay for 3 months. 4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-64c (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 the lowest enlisted grade prior to discharge. 5. 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//