ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 June 2019

	DOCKET NUMBER:  AR20170004570


APPLICANT REQUESTS:  an upgrade to his under other than honorable conditions

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 in effect, he believes the record to be in error or unjust because he willingly joined the United States Army to fight for his country.  He was proud to be a Soldier.  He faced challenges while serving and there became a time when his First Sergeant began continuously accusing him of wrongdoings.  He was under twenty years old at the time and now knows that the choice to go absent without leave (AWOL) for a total of thirty one days was not the best choice.  At the time, he felt getting from under the false accusations of his First Sergeant was his only choice.

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

	a.  He enlisted in the Regular Army (RA) on 25 April 1986.

	b.  He accepted nonjudicial punishment (NJP) under Article 15 on 4 December 1987 and 6 May 1988 for the following:

* 4 October 1987 to 6 October 1987, wrongfully write bad checks for a total of $150.  Punishment was reduction to the grade of private/E2
* 30 September 1987 to 4 December 1987, steal articles belonging to the United States Government valued at $170
* 8 April 1988 willfully disobey a direct order
* 6 May 1988 failing to go to his place of duty at the appointed time.  His punishment was reduction to the lowest enlisted rank, private/E1

	c.  On 4 August 1988, court-martial charges were preferred against him for:

* two specifications of without authority leaving from his appointed place of duty
* two specifications of without authority, failing to at the time prescribed to his appointed place of duty
* one specification of without authority, absent himself from his unit
* three specifications of willfully disobeying a lawful command
* one specification of striking another Solider on the mouth with his fist
* four specifications of wrongfully communicating threats to kill members of his command

	d.  On 17 August 1988, he consulted with legal counsel who advised him the basis for his contemplated trial by court-martial and the maximum permissible punishments authorized under the Uniform Code of Military Justice, the significance of his suspended sentence to a bad conduct dishonorable or dishonorable discharge; of the possible effects of an under other than honorable discharge, if this request is approved, and the procedures and rights available to him.  Following consultation, he requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request, he acknowledged:

* He was guilty of the charge against him or of a lesser included offense(s) therein contained which also authorize(s) the imposition of a bad conduct discharge or dishonorable discharge
* He did not desire further rehabilitation or a desire to perform further military service
* If his discharge was approved, he may be discharged with a bad conduct discharge or dishonorable 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

	e.  Consistent with the chain of commands recommendations to discharge for the good of the service with a under other than honorable discharge, on 30 August 1988, the separation authority approved the applicant’s request for discharge.  He would be issued an Under Other Than Honorable Conditions Discharge Certificate.

	f.  On 15 September1988, he was discharged from active duty under the provision of AR 635-200, chapter 10.  He completed 2 year and 3 months, and 17 days of active service during this period of service and he had lost time from 7 June 1988 to 10 July 1988.


4.  By regulation, a member who has committed an offense 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.

5.  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 short term of service completed prior to misconduct involving both criminal and dangerous behaviors which led to the applications separation, 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 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 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.  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)	 AR20170004570


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