ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  22 April 2019

	DOCKET NUMBER:  AR20160015549


APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge.  He also requests a personal appearance before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-authored statement

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 that it was a misunderstanding by both parties.  He had not learned how to control his reaction and he now likes to have the record cleared.  He was talking to some friends and holding a paper bag with a bottle inside.  The first sergeant (1SG) came and wanted to look inside the bag.  In do so, he touched the applicant twice despite the applicant’s warning not to touch him.  The net thing he knows, he was pending court-martial charges.  He was at Fort Campbell at the time and he was also arrested for a vandalism charge.  He knew the guy that threw the rock and busted the windshield.  The guy mentioned his name and the next thing he knows was being arrested and put in the stockade. His wife went to the captain and told him what happened.  He (the applicant) was then released from the stockade.  He then asked to be out of the Army and they gave him a bunch of papers to sign. 

3.  Review of the applicant's service records shows: 

	a.  2 May 1978, he enlisted in the Regular Army 

	b.  7 September 1978 to 22 October 1980, he served in Germany; and 2 November 1978, he was promoted to specialist/E-4. 

	c.  21 July 1978, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for assaulting another Soldier by pitting a lit cigarette in his face and for leaving his appointed place of duty without authority.  His punishment consisted of, in part, reduction to E02. 

	d.  28 May 1980, he accepted NJP for wrongfully having a knife with a blade in excess of 3 inches in length.  His punishment consisted in part of a suspended reduction to E-1. 

	e.  29 September 1981, he departed his unit in an absent without leave (AWOL) status.  He returned to military control on 4 September 1981. 

	f.  22 October 1981, he was confined in a civilian prison and on 25 November 1981, he was released from confinement. 

	g.  17 November 1981, court-martial charges were preferred against him for:

• one specification of failing to go at the time prescribed to his appointed place of duty
• two specifications of willfully disobeying a lawful order
• two specifications of wrongfully damaging the vehicles of his company commander and his platoon leader

	h.  17 December 1981, additional court-martial charges were preferred against him for: 

• one specification of behaving himself with disrespect
• one specification of willfully disobeying a lawful order
• one specification of wrongfully smashing the read windshield of another Soldier’s vehicle 
• one specification of wrongfully using provocative words and gestures
• one specification of assaulting another Soldier with a knife
• one specification of wrongfully communicating a threat to another Soldier to f—the Soldier up like he f—up his car
• one specification of wrongfully communicating a threat to his lieutenant to injure him

	i.  21 January 1982, he consulted with legal counsel and subsequently requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request, he acknowledged:

• the maximum punishment
• he was guilty of the charge against him or of a lesser included offense which authorized a punitive discharge
• he was not coerced by anyone and he was making this request on his own free will
• he did not desire further rehabilitation or a desire to perform further military service
• if his discharge was approved, he may be discharged under conditions other than honorable and the effects of the discharge
• he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State law

	j.  The chain of command recommended approval of his discharge with the issuance of an under other tan honorable conditions discharge.

	k.  9 February 1982, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge.  He would be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate.

	l.  17 February 1982, he was discharged from active duty under the provision of AR 635-200, chapter 10.  He completed 3 years, 9 months, and 4 days of active service, and he had lost time from 29 August to 3 September 1981 and 25 to 30 November 1981.   He service was characterized as under other than honorable conditions.  He was awarded or authorized the Army Service Ribbon.

5.  On 15 March 1984, the Army Discharge Review Board reviewed his discharge but found it proper and equitable.  The ADRB denied his request for an upgrade. 

6.  By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires

7.  By regulation, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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:

After reviewing the application and all supporting documents, to include the DoD guidance relating to liberal consideration when reviewing discharge upgrade requests, the Board concluded that relief was not warranted.  Based upon the short term of service prior to multiple occasions of misconduct, the Board found that the characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommended denying the applicant’s request or 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 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 three 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 three-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, sets forth the basic authority for the separation of enlisted personnel.  

	a.  An honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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.  When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

	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.

	c.  Chapter 10 of that regulation provides that a Soldier 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.  The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority.  A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment.

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.

4.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.


ABCMR Record of Proceedings (cont)	 AR20160015549


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