ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20170003868 APPLICANT REQUESTS: a reconsideration of his previous request for an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110013972 on 19 January 2012. 2. The applicant states, in effect, because a private was caught lying to the judge and the case was thrown out, documents were lost and there was no proof of the charges or evidence. 3. A review of the applicant’s service record shows: a. Having had prior service in the Army Reserve Delay Entry Program, he enlisted in the Regular Army on 3 September 1981. b. He was assigned to Battery Bravo, 1st Cannon Training Battalion, United States Army Field Artillery Training Center, Fort Sill, Oklahoma from 9 September 1982 through 13 April 1983. c. His DD Form 458 (Charge Sheet), dated 3 March 1983, shows court-martial charges were preferred against the applicant for three specifications of wrongful possession of marijuana, with the intent to distribute, one specification of wrongfully distributing some amount of marijuana, one specification of knowingly and wrongfully using marihuana, one specification of wrongfully and unlawfully arranging for three other Soldiers to engage in sexual intercourse with a prostitute. d. On 4 March 1983, the chain of command recommended a trial by court martial for each specification alleged. e. He consulted with legal counsel on 5 April 1983 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the Service, for possession of marijuana. He acknowledged: * the right to submit statements on his own behalf, he submitted a statement on his behalf * maximum punishment * he is guilty of the charge against him or of a lesser included offense * he did not desire further rehabilitation * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions * he would be deprived of many or all Army benefits administrated by the Veterans Administration * he may be deprived of his rights and benefits of a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge f. The applicant submitted a statement on his own behalf on 5 April 1982. g. Consistent with the chain of command recommendation, the separation approval authority approved the applicant’s request for discharge for the good of the service on 6 April 1983. h. He was discharged from active duty on 13 April 1983. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 10 with SPD: JFS – for the good of the Service, in lieu of court martial. His service was characterized as under other than honorable conditions. He completed 7 months and 11 days of active service this period. He had no lost time. 4. The Army Board for Corrections of Military Records, by letter dated 20 January 2012 denied his request for an upgrade of his under other than honorable conditions discharge. 5. By regulation, a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 6. 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 serious nature of the misconduct and it involving breaking a position of trust by the applicant, 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. AR 635-200 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. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age length of service, grade and general aptitude. b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability. c. Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 2. 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20170003868 4 1