ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  25 June 2019

	DOCKET NUMBER:  AR20170006862


APPLICANT REQUESTS:  upgrade under other that honorable conditions discharge to honorable conditions 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 that his discharge for smoking marijuana was in 2000, 16 years ago.  He was ignorant and irresponsible.  He is very sorry and he no longer agrees with using marijuana for recreational purposes.  His master Jesus Christ has totally transformed him and he is born again.  He is a sincere patriot of America that needs the Board’s help to become a stronger patriot.  Please have mercy on him concerning this matter.

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

	a.  He enlisted in the Regular Army on 24 September 1998.

	b.  DD Form 458 (Charge Sheet), court-martial charges were preferred against the applicant on 10 August 2000 for:

* six specifications of without authority failing to go at the time prescribed to his appointed place of duty
* three specifications of treating with contempt and being disrespectful towards noncommissioned officers
* one specification of disobeying a lawful order of a noncommissioned officer, which was his duty to obey
* one specification of unlawfully striking another enlisted soldier on the face

c.  After consulting with legal counsel on 14 August 2000, the applicant requested discharge in lieu of court-martial.  He acknowledged:

* he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood the elements of the offenses charged and he was guilty of the charge(s) against him or of a lesser included offense(s)
* he did not desire rehabilitation or desire to perform further military service
* he had been afforded the opportunity to consult with appointed counsel
* he understood that if his request for discharge was accepted, he may be discharged under conditions which are other than honorable and furnished an under other than honorable conditions discharge certificate
* he may be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administered by the Veterans Administration and benefits under both Federal and State law
* he may encounter substantial prejudice in civilian life
* he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records to request upgrade of his discharge
* he realized that the act of consideration by either board does not imply that his discharge will be upgraded
* he may submit statements in his own behalf

   d.  On 23 August 2000, consistent with the chain of command recommendations the convening authority approved the applicant’s request for discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  He will be discharged with a under other than honorable conditions characterization of discharge and be reduced to the lowest enlisted grade.

   e.  He was discharge from active duty on 29 August 2000 under the provision of chapter 10, AR 635-200 in lieu of trail by court-martial with an under other than honorable conditions characterization of service.  His DD Form 214 shows he completed 1 year, 10 months, and 12 days of active service.  It also shows he was awarded or authorized Army Service Ribbon and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  By regulation 635-200, a Soldier who has committed an offense or offenses, the punishment for which a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required after referral until final action by the court-martial convening authority.

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.



ADMINISTRATIVE NOTE(S):

Not Applicable

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, sets for the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate with the quality of the Soldier’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 is a separation for the Army under honorable conditions.  When authorized it is issued to a Soldier whose military records is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 (For the Good of the Service) states a Soldier who has committed an offense or offenses, the punishment for which a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service.  The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required after referral until final action by the court-martial convening authority.  A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharge for the good of the service.

3.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any record of the Secretary’s Department when the Secretary considers it necessary to correct an error or remove an injustice.  With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary’s Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency.  Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of the Military Department.

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Corrections 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, 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170006862


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