ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  26 June 2019

	DOCKET NUMBER:  AR20170006317


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 is requesting an upgrade for entitlement to benefits from the Department of Veterans Affairs.  It has been over 40 years since his discharge.  He has been out of the military for some 40 years and his life record and patriotism to his country stand clean.

3.  Review of the applicant’s military record shows:

	a.  He enlisted in the Regular Army (RA) on 3 June 1976.  He held military occupational specialty 63B (Light Wheel Vehicle and Power Generation Mechanic). 

	b.  He served in Alaska from 15 December 1976 to 15 June 1978.  He reenlisted in the RA on 20 December 1979.

	c.  He was promoted to sergeant/E-5 on 3 June 1981.  He reenlisted in the RA on 12 August 1981.  He served in Germany from 24 May 1981 to 29 May 1983.

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

* 17 May 1983 – wrongfully possessing marijuana; his punishment included a reduction to pay grade E-4; he did not appeal; and he was reduced accordingly on 20 May 1983
* 15 February 1984 – wrongfully appropriating the property of the U.S. Government (typewriter with value of $650.00) and wrongfully and unlawfully making under lawful affirmation a false statement; his punishment included a suspended reduction to pay grade E-3; and he did not appeal 
* 18 October 1984 – being absent without leave (AWOL) from 24 to 26 September 1984; his punishment included a reduction to pay grade E-3; he did not appeal; and he was reduced accordingly on the same date
* 17 December 1984 – being AWOL from 20 November to 5 December 1984; his punishment included a reduction to pay grade E-2; he did not appeal; and he was reduced accordingly on the same date

	d.  On 18 January 1985, the applicant’s immediate commander notified him of proposed separation action under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct.  He stated the reason for the separation was his pattern of misconduct; consisting of discreditable conduct and conduct prejudicial to good order and disciplined; violative of the accepted standards of personal conduct found in the Uniform Code of Military Justice, ARs; and time-honored customs and traditions of the Army.  He advised the applicant that the proposed separation could result in a discharge with the least favorable characterization of service as under other than honorable conditions and of his rights.

	e.  On 18 January 1985, after consulting with counsel, he acknowledged the basis of contemplated action for his separation for misconduct UP of chapter 14, AR 635-200; its effects; and the rights available to him.  He acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him and he could be ineligible for many or all benefits as a veteran under both the Federal and State Law and he could expect to encounter substantial prejudice in civilian life.  He waived his rights and elected not to submit a statement in his own behalf.

	f.  On 12 February 1985, he received counseling for his unsatisfactory performance, his expressed desire to ETS (expiration of term of service), and the determination of a chapter discharge being in order.

	g.  On 7 March 1985, the applicant’s immediate commander recommended the applicant’s separation under AR 635-200, chapter 14, before his ETS.

	h.  On 7 and 8 March 1984, the applicant’s chain of command recommended approval of his separation before his ETS. 

	i.  On 19 March 1985, the staff judge advocate determined the case was legally sufficient for such action.
	j.  On 19 March 1985, the separation authority approved the applicant’s discharge and directed the issuance of an under other than honorable conditions discharge.

	k.  On 2 April 1985, he accepted NJP for wrongfully possessing about 150 marijuana seeds.  His punishment included a reduction to pay grade E-1.

	l.  On 3 April 1985, he was discharged from active duty, in pay grade E-1, UP of AR 635-200, paragraphs 14-12a and b(2), for Misconduct – Pattern of Misconduct/Minor Disciplinary Infractions.  He completed 8 years, 7 months, and 15 days of active service and 62 days of time lost.  His service was characterized as under other than honorable conditions.  His DD Form 214 shows he was awarded/authorized:

* Army Service Ribbon
* Overseas Service Ribbon
* Noncommissioned Officer Professional Development Ribbon with Numeral 1
* Army Good Conduct Medal (2nd Award)

5.  By regulation (AR 635-200), action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, chapter 14-12b.

6.  In reaching its determination, the Board can consider the applicants 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 relief is not warranted.  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 pattern of misconduct and some including a criminal behavior, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

However, the Board did note that the applicant had prior periods of honorable service which were not currently reflected on his DD Form 214 and recommended that change be made to more accurately depict his military service.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 3 June 1976 until 11 August 1981.”
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.
	 
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 Personnel), in effect at the time, provided 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 member'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 member whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 -12b – members were subject to separation for misconduct when it was clearly established that despite attempts to rehabilitate and/or develop him or her as a satisfactory Soldier, further effort was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under AR 635-200, Chapter 14-12b.

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 (BCMNRs) regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMNRs 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, BCMNRs 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.

4.  AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214.  It states for item 18 (Remarks) for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment).

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170006317


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