ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  2 July 2019

	DOCKET NUMBER:  AR20160015215


APPLICANT REQUESTS: an upgrade of his characterization of service from under conditions other than honorable to honorable, and a personal appearance.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record) (2)
* Letter from Department of Veterans Affairs (VA)
* VA Discharge Determination Results
* VA Discharge Determination Case

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), 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, he would like his characterization of service upgraded to prevent losing his VA healthcare benefits.  He truly feels that he behaved honorably during his time in service.  He states that his balance of life could be negatively influenced in an unfair manner and his life shortened without healthcare.  His left elbow is still crooked and aches.  His left elbow was an issue after basic training due to the physical strain of excessive push-ups.  Once in Germany, his elbow became an issue again, but once he received a profile he states his first sergeant didn’t believe him and made an example of him by discharging him with a less than honorable discharge.  He would welcome a personal interview so he could further show his crooked left elbow.

3.  The applicant provides:

* Letter from VA, dated 29 March 2017
* VA Discharge Determination Results, dated 14 May 1979, which states that the VA determined the applicant’s service to be under honorable conditions.
* VA Discharge Determination Case, which states that the applicant is not barred from VA benefits

4.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army (RA) on 7 June 1977.  He served in Germany from 13 December 1977 to 27 May 1978.

	b.  On 16 November 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for unlawfully entering and causing damage to the privately owned vehicle of another person.  
	c.  The applicant’s file is void of a separation packet or any documentation relating to separation.

	d.  On 30 May 1978, he was discharged from active duty under the provisions of 
AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial) with an under other than honorable conditions characterization of service.  He completed 11 months, and 24 days of active service.  His DD Form 214 (Report of Separation from Active Duty) further shows he was awarded or authorized an Expert Marksmanship Qualification Badge with Rifle Bar (M16).

5.  On 15 April 2019, the Army Review Boards Agency medical advisor reviewed the applicant's case and rendered an advisory opinion and opined:

	a.  Review of the applicant's electronic VA medical record indicates that the applicant is not service connected.

	b.  Based on the available medical record, the applicant met medical retention standards in accordance with Chapter 3, AR 40-501 (Standards of Fitness).

	c.  Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offense(s), which led to his separation from the Army.

6.  On 19 April 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal.  He did not respond.

7.  By regulation, an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An under other than honorable conditions characterization of service will normally be furnished an individual who is discharged for the good of the service.

8.  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:

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.

After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the short term of service completed prior to the misconduct which led to the applicant’s separation, as well as the medical advisory’s finding that there was no medical condition which would mitigate the applicant’s misconduct, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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.



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  An honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age length of service, grade and general aptitude.

	b.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability.

	c.  Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service.

3.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement.

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 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160015215


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