ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20170004892


APPLICANT REQUESTS:  reconsideration of his previous request for an upgrade of his other than honorable conditions discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

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 AR20050016128 on 24 August 2006.

2.  The applicant states he accepted this type of discharge to exit the Army.  Once he had a better understanding about the discharge, he changed his mind.  He petitioned the commanding general requesting to withdraw the discharge request.  He states his withdrawal was given very little consideration based on the fact that it was made on 26 August 1980 and denied the same day. All he can ask for now is an upgrade of the under other than honorable conditions discharge to General or Honorable. 

3.  A review of the applicant’s service record shows:
   a.  He enlisted in the Regular Army on 20 September 1979.
   b.  On 7 November 1979, he accepted nonjudical punishment under Article 15 for disrespectful language toward a superior noncommissioned officer.
   c.  On 30 July 1980, court-martial charges were preferred.  His DD Form 458 (Charge Sheet) indicates he was charged with larceny of private property as a result of stealing a Canon AE-1 camera with a 50 millimeter lens, valued at approximately $421.59 from the camera shop of a Korean National. 
   d.  On 8 August 1980, he consulted with legal counsel and subsequently requested discharge under the provision of chapter 10.  In his request he acknowledged:  
   
* maximum punishment 
* he was guilty of the charge against him of a lesser included offense 
* he did not desire further rehabilitation or a desire to perform further military service 
* he understood if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an Under Other Than Honorable Discharge Certificate 
* he understood if an under other than honorable conditions discharge was issued, he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the Veterans Administration and benefits of a Veteran under Federal and State law
* he submitted a statement on his own behalf

   e.  On 13 August 1980, consistent with the chain of command’s recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10,  AR 635-200, and directed the applicant receive an under other than honorable conditions discharge, and reduction to the lowest enlisted grade.
   f.  On 26 August 1980, the applicant's counsel filed a petition to withdraw the applicant's request for discharge stating that although the request had been officially approved, the applicant had a desire to fulfill his military commitment and pursue a military career; that the applicant believed that he had the potential for further military service, and rehabilitation in case he was convicted; and that the applicant was only 19 years old and an other than honorable discharge would severely handicap his future.  The appropriate authority disapproved the petition for withdrawal of the request for discharge on 26 August 1980.  
   g.  On 17 September 1980, the applicant was discharged from active duty.  His DD 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service.  It also show he completed 11 months, and 28 days of active service, and he was awarded or authorized:
   •	Sharpshooter Marksmanship Qualification Badge with Rifle Bar 
   •	Expert (Hand Grenade) 
   •	Sharpshooter Marksmanship Qualification Badge (45 Caliber Pistol)

4.  On 24 August 2006, the Army Board for Correction of Military Records denied the applicant's request for an upgrade of his 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.  An under other than honorable discharge is normally appropriate for a member who is discharged 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the short term of service completed prior to a pattern of misconduct, which included some of a criminal nature, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-13 (1) (Honorable discharge) 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 members’ current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-13 (b) (General discharge)  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.

	c.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses, the punishment for any which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An under other than honorable discharge is normally appropriate for a member who is discharged for the good of the service.  However, the discharge authority may direct an honorable or general discharge, if such are merited by the member’s overall record during the current enlistment.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct

ABCMR Record of Proceedings (cont)	 AR20170004892


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