ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20170005448


APPLICANT REQUESTS:  an upgrade of his under 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)
* National Lawyers Guild for Discharge Upgrading and Discharge Review
* National Personnel Records Center (NPRC) letter
* Department of Veterans Affairs (VA) letter

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 cannot find any reason for such a severe discharge.  His application packet is void of the written statement he stated was attached.

3.  He provided:

* National Lawyers Guild for Discharge Upgrading and Discharge Review, written by a part-time attorney with a San Francisco veteran’s service organization, on the basics of discharge upgrading
* NPRC letter, dated 28 November 2011, wherein he was provided the requested copy of his official military personnel file and medical record
* VA letter, dated 14 Jan 2013, wherein he was advised to contact them to update their permanent records with his address and phone number

4.  Review of the applicant’s record shows:

	a.  He enlisted in the Regular Army on 31 July 1975 and he held military occupational specialty 13B (Field Artillery Crewman).  
	b.  He was promoted to E-3 on 1 July 1976.  He served in Germany from 17 December 1975 to on or about 25 August 1977. 

	c.  He accepted nonjudicial punishment (NJP) on/for:

* 3 June 1976 – stealing the property of the U.S. Army Audio Club
* 22 September 1976 – being absent without leave on 18 September 1976; his punishment included a reduction to pay grade E-2; he was reduced accordingly on 22 September 1976
* 9 November 1976 – failing to obey a lawful order on 24 October 1976

	d.  He was again promoted to pay grade E-3 on 1 February 1977

	e.  He accepted NJP on 27 May 1977 for failing to go to his appointed place of duty on 16 May 1977.

	f.  A DA Form 458 (Charge Sheet), dated 14 July 1977, shows court-martial charges were preferred against the applicant for one specification each of wrongfully appropriating the property of the U.S. Government, violating a lawful general regulation, and willfully disobeying his superior commissioned officer on 27 and 30 June 1977.

	g.  On 2 August 1977, after consulting with legal counsel, he was advised of the basis of contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice.  Following this consult, he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel).  He acknowledged:

* maximum punishment
* if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* he may be deprived of many or all Army benefits
* he may be deprived of his rights and benefits as a veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life

	g.  In August 1977, after interviewing the applicant, his chain of command recommended approval of the chapter 10 discharge and stated the applicant’s record of NJP offenses and demonstrated inability to improve his job performance to an acceptable level provided sufficient grounds for proceeding with the discharge action.  The applicant stated he wanted out of the service and did not understand why he was continually in trouble and felt a discharge, even under other than honorable conditions, was his only answer.  

	h.  Accordingly, he was discharged from active duty, in pay grade E-3, on 29 August 1977.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service and he was issued an Undesirable Discharge Certificate.  His DD Form 214 also shows he completed 2 years and 29 days of active service.  He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) and Grenade Bars.

5.  By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes an undesirable discharge, may submit a request for discharge in lieu of trial by court-martial.  

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, 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 relatively short term of service completed prior to a pattern of misconduct, some including criminal behaviors, 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), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

     a.  Paragraph 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the Soldier’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

     b.  Paragraph 3-7b (General Discharge) – a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

     c.  Chapter 10 – an individual who has committed an offense or offenses, the punishment for which included an undesirable discharge, could submit a request for discharge for the good of the service.  A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service; however, the separation authority could direct a General Discharge Certificate, if such was merited by the Soldier’s overall record during the current enlistment.

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 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)	 AR20170005448


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