ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 April 2019

	DOCKET NUMBER:  AR20160019239


APPLICANT REQUESTS:  The applicant requests his under honorable conditions be upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Applicant Statement
* Letters of Support

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 made bad choices in his life and one of them was leaving the Army the way he did and not realize the consequences that would follow.  He let himself down, all those who served in the Armed Forces and those brave Soldiers who gave their life.  He kept this bottled up for years because he was ashamed but finally told his wife and a few others he was discharged; he is blessed to have an understanding wife.

3.  On 10 May 1976, at the age of 21 the applicant enlisted in the Regular Army.  

4.  On 3 October 1977, a record of counseling shows the applicant was counseled by his section leader, because he was picked up by the police for having about a half pound of marijuana.  The applicant was fined $290 or 90 days in jail; he went to jail because he did not have the $290.  The section leader commented on how the applicant was counseled on more than one occasion and has shown little to no improvement.  He recommended the applicant be put out of the Army and given a BCD.

5.  On 21 October 1977, a record of counseling shows the applicant was counseled twice by his team leader.  His team leader discussed with the applicant to refrain from certain language and his bad attitude toward the Army.  The applicants team chief recommended that he be put in for a chapter 13 and be discharged as soon as possible.  

6.  On 27 January 1977, he was given a letter of reprimand from his commander for using disrespectful racially slanderous language towards a non-commissioned officer in the unit.

7.  On 1 November 1977, the applicant received non-judicial punishment for failing to maintain his Fort Riley registration.

8.  On 10 November 1977, a record of counseling shows the applicants First Sergeant counseled the applicant on his attitude, performance of duty, and why he was sending him to the IEC and what the course could do for him.  The applicant told the First Sergeant that he volunteered for the drug program so he wouldn’t be able to go to the IEC course and would do anything to get out of the Army as well as didn’t care what discharge he got.  The First Sergeant noted he believed the applicant’s attitude towards the Army reflects immaturity on his part and he could not be rehabilitated; a chapter 13 from the service is recommended.

9.  On 21 November 1977,  the applicant was notified by his commander, he was being considered for separation from the United States Army under the provisions of Chapter 13, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), for misconduct and advised of his rights.

10.  His commander recommended he be separated under the provisions of paragraph
13-5a (1) because of.  The basis for elimination is a totally unsatisfactory Soldier, conviction by civil court for possession of half pound of marijuana, letter of reprimand for disrespectful and slanderous conduct toward a non-commissioned officer, several infractions with his POV to include:  speeding, no post-registration (two offenses), and being a passenger during a DWI offense, his attitude was repeatedly poor and shows no desire to improve.

11.  On 8 December 1977, the applicant was advised by legal counsel and acknowledged that he understood his available rights.

12.  On 22 December 1977, the appropriate authority approved the recommendation for discharge of the applicant and directed he be discharge under other than honorable conditions.  

13.  On 10 January 1978, the applicant was discharged accordingly.  He completed 1 year, 7 months and 14 days of total active service.  

14.  The applicant states he made untold mistakes and bad choices in his life.  One of them was leaving the Army the way he did and not realize the consequences that would follow.  He let himself down, all those who served in the Armed Forces and those brave Soldiers who gave their life.  He was ashamed but told his wife and family why he was discharged; he is blessed to have an understanding wife.  He provides three letters of support from his mother Ms. X___ X____, his Army buddy, Mr. X ___, and Mr. X___.  They all speak of how the applicant has become a successful an outstanding individual in the community in which he lives since his discharge.  He’s reliable and a family man.  The all know how much he regrets how he left the military and support him in and believe that if he had it all to over again, the outcome would be honorable.

15. Army Regulation 635-200 provides states members are separated under chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when, in the commander's judgment when the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future the basis for separation would continue or recur; the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  The issuance of a discharge under other than honorable conditions is normally considered appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

16.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency.

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 appropriate.  Based upon the multiple offenses of the UCMJ, the Board determined 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 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate. However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.
3.  Army Regulation 635-200 (Personnel Separations, Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

     a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

     b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

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 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.  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)	 AR20160019239
0

4


1