IN THE CASE OF: BOARD DATE: 12 October 2023 DOCKET NUMBER: AR20220011376 APPLICANT REQUESTS: in effect, an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from the Department of Veterans Affairs (VA) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 VA has determined his military service for the period 24 February 1976 through 21 November 1979 is honorable for VA purposes. 3. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 24 February 1976. He held military occupational specialty 36C, Wire Systems Installer/Operator. He was assigned to the 176th Signal Company, 58th Signal Battalion, Fort Lewis, WA. b. On 20 October 1976, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana. c. On 10 October 1979, court martial charges were preferred against him. His DD Form 458 (Charge Sheet) indicates he was charged with: * one specification of stealing sausages, ground beef, and bacon, property of the United States * one specification of unlawfully entering the battalion dining facility with intent to commit a criminal offense, larceny d. His chain of command recommended trial by Special Court Martial empowered to adjudge a bad conduct discharge, and on 25 October 1979, the convening authority directed trial by a special court-martial empowered to adjudge a bad conduct discharge. e. On 25 October 1979, the applicant consulted with counsel and was advised of the contemplated trial by court-martial for an offense punishable by a bad conduct or a dishonorable discharge. Following this consult, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged the following: (1) He was making this request of his own free will and have not been subjected to any coercion whatsoever by any person; he has been advised of the implications that are attached to it. (2) He understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate. (3) He understood that, if his request for discharge is accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate. (4) He acknowledged he had been advised and understood the possible effects of an Under Other Than Honorable Discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also understood that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge. (5) He elected to submit a statement (not available in the service record). f. The separation authority’s approval memorandum is not available for review. However, on 14 November 1979, Headquarters, 9th Infantry Division, Fort Lewis, published Orders 224-775 ordering his discharge on 21 November 1979. g. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from active duty on 21 November 1979 under the provisions of AR 635-200, chapter 10 (in lieu of trial by a court-martial) in the rank of private/E-1, with an under other than honorable conditions characterization of service. He completed 3 years, 8 months, and 28 days of active service. He was awarded or authorized: * Good Conduct Medal * Driver and Mechanic Badge * Marksman Qualification Badge with M-16 Bar 4. The applicant provides a letter, dated 26 July 2022, that states the VA decided that his military service for the period 24 February 1976 to 21 November 1979 is honorable for VA purposes. 5. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, 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, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. 2. A majority of 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. A majority of the Board found the VA’s determination that the applicant’s service was honorable for VA purposes insufficient as a basis for clemency. Based on a preponderance of evidence, a majority of the Board determined the character of service the applicant received upon separation was not in error or unjust. 3. The member in the minority found the original character of service too harsh considering the non-violent nature of the applicant’s misconduct and his good service prior to the misconduct, for which he was awarded the Army Good Conduct Medal. Based on a preponderance of the evidence, the member in the minority determined the applicant’s character of service should be changed to under honorable conditions (general). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :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, 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 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 (Personnel Separations – Enlisted Personnel) 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a states that 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. Paragraph 3-7b states that 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. 3. 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 based on 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) AR20220011376 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1