ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  13 June 2019

	DOCKET NUMBER:  AR20170005602


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge to a hardship discharge.

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 his brother died while he was on leave and it was very hard on his mother.  He had to be there for her, it was a family hardship.

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

	a.  He enlisted in the Regular Army on 8 July 1980.

	b.  A DA Form 268 (Report for Suspension of Favorable Personnel Action (FLAG)) was initiated on 16 January 1981 changing the applicant’s duty status from present for duty to absent without leave (AWOL).

	c.  A DA Form 4187 (Personnel Action) was completed on 13 February 1981 changing the applicant’s duty status from AWOL to dropped from rolls (DFR).

	d.  A DA Form 4187 was completed on 15 May 1984 changing the applicant’s duty status from DFR to returned to duty.

	e.  A DD Form 458 (Charge Sheet) which would have indicated the charge(s) and/or specification(s) preferred on the applicant is unavailable for the Board to review.

	f.  The complete facts and circumstances surrounding the applicant’s discharge are unavailable for the Board to review.  However, his record contains a DD Form 214 which outlines his reason for separation.

	g.  He was discharged from active duty on 1 July 1984 with an under other than honorable conditions characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200 (Personnel Separations – Enlisted Separations).  It also shows he completed 7 months and 22 days of active service with lost time from 9 January 1981 to 10 May 1984.  He was awarded or authorized the Army Service Ribbon and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  By regulation:

	a.  A member who has committed an offense or offenses, the punishment for 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 Certificate normally is appropriate for a member who is discharged for the good of the service.

	b.  Enlisted members may be discharged or released because of hardship.  Hardship exists when in circumstances not involving death or disability of a member of the Soldier’s immediate family, separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship.

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 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 record, 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 (AR) 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted members.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 6 of that regulation governs separation because of genuine dependency or hardship.  It states enlisted members may be discharged or released because of hardship.  Hardship exists when in circumstances not involving death or disability of a member of the Soldier’s immediate family, separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship.

	d.  Chapter 10 of that regulation states a member who has committed an offense or offenses, the punishment for 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 Certificate normally is appropriate for a member who is discharged for the good of the service.

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)	AR20170005602


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