IN THE CASE OF: BOARD DATE: 15 February 2023 DOCKET NUMBER: AR20220008227 APPLICANT REQUESTS: his character of service from under other than honorable conditions to honorable and a personal appearance hearing via telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 22 September 2005 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Review Board Agency (ADRB) in Docket Number AR1999025902 on 21 January 1996. 2. The applicant states he should not have received a under other than honorable conditions discharge. 3. On 3 September 1981, the applicant enlisted in the Regular Army. He completed training and was awarded military occupational specialty (MOS) P36k (Tactical Wire Operator). 3. On 6 July 1983, the applicant was assigned to Headquarters Battery, 3rd Battalion, 7th Air Defense Artillery Regiment in Germany. 4. His DD Form 2-1 (Personnel Qualification Record) shows in part, in item 18 (Appointments and Reductions) – * private, effective 3 September 1981 * private two, effective 3 March 1982 * private first class, effective 1 October 1982 * private two, effective 21 November 1983 5. The applicant’s Disposition Form shows the following charges: a. Charge 1: Article 90: Specification 1: on or about 27 May 1984 assault Staff Sergeant by striking him in the jaw with a fist and in the arm with a broken picture frame. b. Charge 2: Article 95: Specification: on or about 27 May 1984, resist being lawfully apprehended by Sergeant , an armed forces policeman. c. Charge 3: Article 108: * Specification 1: did on or about 27 May 1984, without authority destroy the unit portraits of a value of $83.00 property of the U.S. Government * Specification 2: did on or about 27 May 1984, without authority willfully destroy a chair of a value of $88.00 property of the U.S. Government d. Charge 4: Article 128: Specification 2: did on or about 27 May 1984, assault Sergeant , a military policeman in the execution of his duties, by kicking, striking, and spitting on him. 6. On 24 July 984, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an Under Other Than Honorable Conditions Discharge if this request is approved, and of the procedures and rights available to him. Following this consultation, the applicant requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: a. He understood that submitting this request for discharge he acknowledge that he is guilty of the charges against him or of a lesser included offenses therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge. b. He had been advised and understand the possible effects of an under other than honorable discharge. As a result of the issuance of such a discharge he will be deprived of many or all Army benefits that he may be ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a veteran under both state and federal law. c. He also understood that he may, up until the date the discharge authority approves his discharge, withdraw his acceptance of this discharge. 7. On 24 July 1984, the immediate and intermediate commanders recommended approval of the applicant's request for discharge and the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 8. On 1 August 1984, consistent with the chain of command recommendations, the separation authority approved the applicant's elimination from the service UP of AR 635-200, Chapter 10 and ordered the issuance of an Under Other Than Honorable Conditions Discharge Certificate and the applicant's reduction to private/E-1. 9. A Memorandum, subject: Report of Psychiatric Evaluation of the applicant, 21 August 1984, issued by the noncommissioned officer in charge, of the Division Mental Health Team, which shows, in part: a. REASON FOR REFERRAL: Applicant was referred by his command for psychiatric evaluation in conjunction with the unit’s possible plans for administrative separation. b. PERTINENT HISTORY: Applicant received an Article 15 in November 1983 due to an alleged assault incident which was also drug alcohol related. The applicant was also evaluated through Division Mental service/ Wurtzburg Psychiatry after the incident. The applicant has had two other reported incidents of fighting since November 1983 (no UCMJ). The applicant was enrolled in the Drug/ Alcohol Program in 1983 and 1984. c. MENTAL STATUS EXAM: Applicant was oriented to person, place, time and situation. There was no evidence of loose associations/delusions/hallucinations. Applicant’s mood reflected mild anger and his affect was appropriate. His behavior was open and cooperative. Applicant reported no current suicidal/homicidal ideation. Applicant denied current use of medication/drugs. d. FINDINGS AND CONCLUSIONS: The applicant has characterological traits which would lead to a recurrence of present difficulties should be retained. Applicant will likely act out on impulse with alcohol use. Applicant is cleared psychiatrically with exception to a drug/alcohol diagnosis which may be addressed in the drug alcohol program. 10. Orders Number 248-221, issued by Headquarters, U.S. Army Training Center and Fort Dix, 4 September 1984, shows in part, the applicant was discharged from the Regular Army, effective 4 September 1984. 11. The applicant was discharged from active duty on 4 September 1984 UP of AR 635-200, chapter 10, for the good of the service in lieu of court-martial, with the issuance of an under other than honorable certificate. His DD Form 214 shows he completed 3 years, and 2 days of active. Additionally, he was awarded or authorized: * Marksmen Marksmanship Qualification Badge with Rifle Bar, M-16 * Sharpshooter Marksmanship Qualification Badge with Hand Grenade * Army Service 12. On 21 January 1986 the Army Discharge Review Board (ADRB), after careful consideration of his military records and all other available evidence, the ADRB denied his request for an upgrade of his discharge. 13. By regulation (AR 635-200), a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 14. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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 letters of support that attest to his honorable conduct that might have mitigated the discharge characterization. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period. 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. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. ? 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 AR1999025902 on 21 January 1996. 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. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600–8–19. 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. 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. 4. Army Regulation 15-185 (ABCMR), paragraph 2-11 states applicant's do not have a right to a hearing before the ABCMR. The Director may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008227 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1