ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 June 2019

	DOCKET NUMBER:  AR20170003014


APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to a general under honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-authored statement
* Court Order Dismissing Petition for Support, dated 4 January 1984 (8 pages)

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, in effect, he was paying child support for a child that was not his.  He was made aware that he could have his discharge upgraded by his county Veterans representative.

3.  The applicant provided a self-authored statement detailing his belief that his character of discharge was the result issues he had with his estranged ex-fiancé and his paying child support for a child that was not his.  He states that his former fiancé coerced him to accept responsibility for her child (X) as his son under duress prior to entering military service.  As a result, he had to sign an acknowledgement that the child was his.  While in the military, he later learned the child was not his.  He struggled with his chain of command to prove he was not the paternal father.  He lacked the maturity to resolve issues of this type as an 18 year old, and began to believe the world was against him.  He claims the issue led him to drinking and fighting over the child support issue. He further states all of the issues combined, led his command to discharge him early with an under other than honorable discharge.  Lastly, he states he pursued legal action to resolve the child support issue upon his discharge from active service.  He states he proved his case in court and won.  In light of the evidence provided, he is requesting the Board upgrade his discharge to a general under honorable conditions.
4.  The applicant provides court order documents related to the paternity and child support payments for X.  The original court order, Case No. 81-20-XXX, dated 16 June 1981, in the county of Lycoming County, PA, states the applicant acknowledged paternity and because he was soon to enter the Armed Services, primary custody would be with the mother and the applicant would be required to pay monthly child support payments.  On 20 October 1983, he petitioned the court, alleging proper grounds for reopening the case, indicating doubt as to whether he was the father of the child.  On 4 January 1984, the court dismissed the applicant’s child support responsibilities because the mother claimed the applicant was not the natural father of the child.

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

	a.  He enlisted in the Regular Army on 25 June 1981 and attained the rank and grade of PV2/E-2.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 on/for:

* 15 December 1981, absence from his appointed place of duty without authority, disrespect to a noncommissioned officer, disrespect to a commissioned officer, and disobeying a lawful order from a commissioned officer; his punishment consisted, in part of reduction to private/E-1
* 7 July 1982, drunk and disorderly in the command area, throwing furniture in the billet

	b.  The applicant’s immediate commander recommended a bar to enlistment/ reenlistment on 18 December 1981 for the pattern of misconduct.  The applicant acknowledged receipt of the recommendation and did not desire to submit a statement on his behalf.  The bar to enlistment/reenlistment was approved by the approving authority on 5 January 1982.

	c.  The applicant’s service record was void of primary court-martial documents (i.e., general or special court-martial orders, appellate review, etc.).  However, a DA Form 4430-R (subject:  Report of Result of Trial), issued by Headquarters, 24th Infantry Division (Mechanized) Artillery, Fort Stewart, GA shows the applicant received a trial by a special court-martial on 29 March 1982.  

		(1)  The summary of offenses, pleas, and findings are listed the applicant guilty of the following specifications: failure to report and disobeying a commissioned officer

		(2)  On 29 March 1982, the court convicted him and sentenced him to be confined to 75 days hard labor.  

	d.  Orders 88-301, dated 4 May 1982, issued by Headquarters, US Army Signal Center and Fort Gordon, assigned the applicant to the U.S. Army Retraining Brigade effective 6 May 1982.
	e.  Military Police Report, dated 4 July 1982, shows the applicant was charged and released back to his unit for wrongfully damaging military property and drunk and disorderly conduct.

	f.  DA form 2496 (Disposition Form), dated 13 July 1982, Subject: Notification of Discharge Proceedings, notified the applicant that discharge proceedings were initiated against him for misconduct.  The applicant signed the acknowledgement of receipt of the notification and listed he understood his rights and the procedures involved.

	g.  Also on 13 July 1982, the applicant’s immediate commander recommended him for discharge for frequent incidents of misconduct.  A consolidation list of incidents of attitude, conduct, performance and discreditable acts was included with the recommendation.  On 14 July 1982, the applicant’s intermediate commander endorsed the recommendation.

	h.  Military police report, dated 18 July 1982, shows the applicant was charged and released back to his unit for: wrongful possession of marijuana, resisting apprehension, and aggravated assault.

	i.  On 18 August 1982, the applicant confirmed he had been advised by consulting counsel regarding his pending separation for misconduct.

* The applicant waved consideration of his case by a board of officers
* He waived a personal appearance before a board of officers
* He waived representation by military or civilian counsel.

	j.  27 August 1982, the separation authority approved the applicant for discharge in accordance with Chapter 14 of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel).

	k.  Orders 166-4, dated 27August 1982, issued by US Army Retraining Brigade, Fort Riley, KS, discharged the applicant from the Regular Army effective 1 September 1982.

	l.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with AR 635-200, paragraph 14-33b(1), for frequent involvement in incidents of a discreditable nature with civil or military authorities.  He received an under other than honorable conditions character of service.  He completed 1 year and 7 days of total active service.  His DA Form 2-1 and DD Form 214 shows he was awarded the following:

* Army Service Ribbon
* Expert Marksmanship Badge with Rifle Bar
* Expert Marksmanship Badge with Grenade Bar

6.  By regulation AR 635-200, Soldiers are subject to separation under the provisions of chapter 14 for minor disciplinary infractions or a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 

7.  The Board should consider the applicant’s submission in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  Based upon the short term of service completed prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate.

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.  AR 635-200, sets forth the basic authority for the separation of enlisted personnel.

a. Paragraph 3-7a provides that an honorable discharge is given when the quality of 
the Soldier's service has generally met standards of acceptable conduct and duty performance.

b. Paragraph 3-7b provides 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.

c. Paragraph 14-33b(1), of the version in effect at the time, provides members are 
subject to separation under the provisions of this section for patterns of misconduct related to frequent incidents of discreditable nature with civil or military authorities.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records may grant clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.

a. 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, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.

b. Changes to the narrative reason for the 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)	 AR20170003014


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