ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 June 2019

	DOCKET NUMBER:  AR20170006779


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

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 when he reenlisted he was not told the truth about what he was promised.  He was honorably discharged prior to this and would like his to use his benefits.

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

	a.  He enlisted into the Regular Army on 18 April 1978.  He reenlisted on 31 October 1980 for 4 years.

	b.  He accepted nonjudicial punishment under the provisions of Article 15 on/for

* 15 August 1979, failing to obey a lawful order; his punishment consisted of reduction to private E-2, suspended for 60 days, and extra duty for 45 days
* 9 February 1981, willfully destroying by kicking in a door, military property of the United States; his punishment consisted of reduction to private E-2, forfeiture of $200 for 2 months, and restriction and extra duty 
* 16 March 1981, wrongfully possessing marijuana; his punishment consisted of reduction to private E-1, forfeiture of $200 for 1 month, and extra duty and restriction 

	c.  He served in Germany from 26 August 1978 to 7 June 1981.  He was assigned to Delta Battery, 1st Battalion, 41st Field Artillery.

	d.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his service record contains: 

		(1)  Orders 159-301, issued by 198th Personnel Service Company, Germany, on 8 June 1981, ordered him to report to the U.S. Army separation transfer point for separation processing, under Army Regulation (AR) 635-200 (Personnel separations), effective 9 June 1981.

		(2)  DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 11 June 1981 in accordance with chapter 10, AR 635-200 with an under other than honorable conditions characterization of service.  He completed 3 years, 1 month, and 24 days of active service.  

4.  By regulation (AR 635-200), 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.  The issuance of a discharge under the provisions of chapter 10, AR 635-200, would have required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of a trial by court-martial. 

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, 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 pattern of misconduct, some involving violent behavior, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, the Board concluded that the characterization of service received at the time of discharge was appropriate.

However, the Board did note that the applicant had a prior period of honorable service which was not currently depicted on his DD Form 214 and recommended that be changed to more accurately depict the military service of the applicant.


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 18 April 1978 until 31 October 1980.”
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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

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

	b.  Paragraph 1-13b (General discharge) states that 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.  The recipient of a general discharge is normally a member whose military record and performance is satisfactory.

	c.  Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, 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.  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 (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)	AR20170006779


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