ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:    6 May 2019

	DOCKET NUMBER:  AR20160019071

APPLICANT REQUESTS:  an upgrade of his other than honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 149 (Application for Correction of Military Record)

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 his period of service 27 August 1987 to 26 August 1991 was honorable and would like his DD Form 214 to say honorable discharge.  The applicant also states he was told that his second period of service would reflect honorable as well.

3.  A review of the applicant’s service record shows the following:

	a.  He enlisted in the Regular Army (RA) on 27 May 1987.

	b.  He served in Panama from 14 August 1989 to 3 August 1990.

	c.  He reenlisted in the RA on 12 August 1991.

	d.  He accepted nonjudicial punishment under the provisions of Article 15 on
30 June 1992 for utterance of nine insufficiently funded checks; his punishment consisted, in part, of reduction to E-4.

	e.  Court-martial charges were preferred against the applicant on 17 March 1994 and 20 August 1996 for violations of the Uniform Code of Military Justice.  His DA Form 458 (Charge Sheet), indicates he was charged with larceny, theft and for being absent without leave (AWOL) from on or about 24 March 1994 through on or about 15 August 1996.

	f.  The applicant consulted with legal counsel on 26 August 1996.  He acknowledged the following:

* he understood the maximum punishment
* he was guilty of the charge against him or of a lesser included offense which authorized a punitive discharge
* he did not desire further rehabilitation 
* if his discharge was accepted, 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
* he was advised he could submit any statements he desired on his own behalf; his election shows he chose not to submit a statement

	g.  Consistent with the chain of command recommendations, on 3 October 1996, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation (AR) 635-200, Chapter 10, for the good of the service in lieu of trial by court martial.  He was reduced to E-1 and issued an Under Other Than Honorable Conditions Discharge Certificate.

	h.  On 15 January 1997, he was discharged from active duty.  His DD Form 214 shows he was discharged under the provisions of AR 635-200 with his service characterized as under other than honorable conditions.  He completed 8 years, 11 months, and 11 days of active service.  It also shows in:

		(1)  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) he was awarded or authorized:

* Army Commendation Medal
* Army Achievement Medal
* Army Good Conduct Medal
* National Defense Service Medal
* Armed Forces Expeditionary Medal
* Southwest Asia Service Medal (3d Award)
* Army Service Ribbon
* Overseas Service Ribbon
* Kuwait Liberation Medal (SA)
* Kuwait Liberation Medal (KU)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

		(2)  Item 18 (Remarks), “Continuous honorable service from 27 August 1987 to 11 August 1991.”

4.  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 on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the seriousness of the misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommended denying the applicant’s request for 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, 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 Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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 (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  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.  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.

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.

ABCMR Record of Proceedings (cont)	 AR20160019071


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