ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 August 2019 DOCKET NUMBER: AR20170003862 APPLICANT REQUESTS: upgrade of his other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored statement * Acknowledgement letter from the Army Review Board Agency (ARBA) * VA Form 10-7131 (Exchange of Beneficiary Information and Request 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 an upgrade to his under other than honorable conditions discharge because he needs help. He states his other than honorable discharge was to be upgraded to honorable six months from the date of discharge. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 20 June 1978. b. He was trained in military occupation specialty 19F (Tank Driver) and stationed at Fort Riley. c. According to the applicants DA Form 2-2 (Insert Sheet to DA Form 2-1), the applicant was convicted by special court-martial of one specification of larceny on 24 April 1979 and one specification of destruction of property. His punishment included confinement at hard labor for 45 days, forfeiture or $279 per month for four months and reduction to private/ E-1. The sentence was adjudged on 6 September 1979 and approved on 22 October 1979. d. On 6 November 1979, he accepted NJP under Article 15 for wrongfully having in his possession 1.26 grams, more or less of marijuana on 2 November 1979. His punishment was forfeiture of $100 per month for one month, 14 days restriction and 14 days extra duty. e. His service record is void of the complete facts and circumstances surrounding his discharge. However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged under provisions of Army Regulation (AR) 635-200, paragraph 14-33b(1), for misconduct-frequent incidents of a discreditable nature with civil or military authorities. f. The applicant was discharged on 27 November 1979. His DD Form 214 shows he completed 1 year, 3 months and 16 days net active service with lost time from 25 June 1979 to 10 July 1979, 6 September 1979 to 27 September 1979, and 6 November 1979 to 19 November 1979. It also shows he was awarded or authorized the Marksmanship Quality Badge. 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within the board’s 15 year statute of limitations. 5. By regulation, AR 635-200, Chapter 14, sets forth the basic authority for the separation of enlisted personnel for misconduct. Soldiers are subject to separation under the provisions of this section for the following: Patterns of misconduct. Frequent incidents of discreditable nature with civil or military authorities 6. 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 short term of honorable service completed prior to a pattern of misconduct, 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a(1) states an (Honorable Discharge) is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ. Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge. It is pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. When there is doubt as to whether an honorable or general discharge should be furnished, the doubt should be resolved in favor of the member. b. Paragraph 1-13b states a (General Discharge) is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent non-judicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record. c. Paragraph 14-33b(1) states members are subject to separation under the provisions of this section for the following: Patterns of misconduct. Frequent incidents of discreditable nature with civil or military authorities. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20170003862 3 1