ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  5 June 2019

	DOCKET NUMBER:  AR20170006383


APPLICANT REQUESTS:  to add the period of honorable service to his DD Form 214

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 DD Form 214 (Certificate of Release or Discharge from Active Duty) did not show his honorable discharge he received from his first tour of duty.  He is getting older and would like to get his paperwork in order for his spouse and family.  

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

	a.  He enlisted in the Regular Army on 3 December 1976 and reenlisted on 30 June 1980.

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

* 20 October 1981, wrongfully using marijuana 
* 4 May 1983, disobeying a lawful command 

	c.  On 26 August 1983, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-5 (Civil Conviction).

	d.  On 5 January 1984, he acknowledged receipt of the notification of the proposed separation action and consulted with legal counsel.  He was advised of the basis for the contemplated separation action under the provisions of AR 635-200, paragraph 14-5, the effect on future enlistments in the Army, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to him.  

* he waived consideration of his case by a board of officer and personal appearance before a board of officers
* he acknowledged he understood if he were issued a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and state laws
* he acknowledged he could expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement on his own behalf 

	e.  On 9 May 1985, subsequent to this action, his immediate commander initiated separation action against him for civilian confinement, under the provisions of paragraph 14-5, AR 635-200.

	f.  On 11 January 1984, the brigade commander recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. 

	g.  The separation authority approved the discharge under the provisions of paragraph 14-5, AR 635-200 and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was discharged on 
9 July 1985.

	h.  His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 14-5 by reason of (Civilian Conviction) with an under other than honorable conditions discharge.  He completed 6 years, 7 months, and 26 days of active service and he had lost time from 22 October 1982 to 4 November 1982 and 6 June 1983 to
8 December 1983.  It also shows he was awarded or authorized:  

* Expert Marksmanship Badge with M16 Bar
* Good Conduct Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Air Assault Badge

4.  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, the Board found the relief was warranted.  Soldiers receiving less than an honorable discharge should have the period of honorable service listed in the remarks section of the DD Form 214.  The Board recommends a full grant.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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 December 1976 until 28 June 1980.”
	 
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 Separations), in effect at time, provides for the separation of enlisted personnel.

	a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.  Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  A member will not necessarily be denied an honorable discharge solely by reasons of a specific number of convictions by courts-martial or actions under Article 15 of the Uniform Code of Military Justice.  It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded.

	b.  Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 1-18 (Counseling and rehabilitative requirements) Commanders will insure that adequate counseling and rehabilitative measures have been taken, before initiating action to separate a member for one of the following reasons:

* Inability to perform prescribed duties due to parenthood (para 5-8)
* Personality disorder (para 5-13)
* Entry level performance and conduct (chap 11)
* Unsatisfactory performance (chap 13)
* Minor disciplinary infractions or a pattern of misconduct (para 14-12a/b

	d.  Paragraph 14-12c (Commission of a serious offense) states commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual of Court-Martial (MCM).  An absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense.

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)	AR20170006383


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