ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20170008113


APPLICANT REQUESTS:

* an upgrade of his under other than honorable conditions discharge
* a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-Authored Statement

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 has not been involved with the law ever in his life.  He worked at the post movie theater and it was his job to collect the tickets, help clean the theater in between the movie showings and to complete any other tasks his superior officers requested.  He dispatched a vehicle from the dispensary that was signed off by his sergeant, (Sergeant (SGT)) X. and his company commander according to the applicant.  SGT X asked him to take 4 cooks with him once he left and he did so and then proceeded to another theater and watched a movie for one half of an hour according to the applicant.  He states that after he picked up the requested movies he proceed back downhill and he noticed 4 men standing outside with several boxes so he gave them a ride back downhill.  The men loaded the boxes into the back of his vehicle and he continued on his path to Bismark Kasserne.  Once he got back to the theater he took the films inside gave them to someone, however, when he returned to his vehicle the boxes and the men were gone according to the applicant.  Days later the military police (MP) knocked at his door and informed him that he needed to accompany them to the MP station.  It turned out that the boxes had stolen stereo equipment and he never found out what happened.  The cooks stated that they had nothing to do with the incident.  He took the advice from his lawyer and requested a Chapter 10 discharge.  
3.  A review of the applicant’s service record show:

	a.  He entered enlisted in the Regular Army on 17 July 1975.

	b. He served in Germany from 19 October 1976 to 7 June 1978.

	c.  He accepted nonjudicial punishment under Article 15 on/for:

* 4 May 1977, for on or about 5 April 1977, willfully disobeying a lawful order from his superior noncommissioned officer, his punishment included forfeiture of $150, 14 days of extra duty, and restriction
* 1 July 1977, on or about 14 May 1977, break restriction, his punishment included forfeiture of $150, 30 days of restriction and extra duty
* 9 August 1977, on or about 8 July 1977, being drunk and disorderly; his punishment included reduction to E-3, forfeiture of $150 per month for 2 months, 45 days extra duty and restriction

	d.  On 12 January 1978, court martial charges were preferred against him.  His DD Form 458 (Charge Sheet) shows he was charged with:
* one specification of stealing stereo equipment, the property of another Soldier 
* one specification of wrongfully appropriating a military truck 
* one specification of unlawful entry with intent to commit theft (larceny)

	e.  On 6 March 1978, he consulted with civilian legal counsel at his own expense and he hereby voluntarily request discharge for the good of service.  Counsel advised him of the contemplated trial by a court-martial and of his rights.  He subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  He acknowledged:

* maximum punishment
* he was guilty of the charges against him or of a lesser included offense
* he did not desire further rehabilitation or further military service
* if his request for discharge was accepted, he may be discharged under other than honorable conditions 
* as a result of the issuance of an under other than honorable conditions discharge, he would be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administered by the Veterans Administration
* he may be deprived of his rights and benefits as a veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement in his own behalf
	f.  On 17 March 1978, consistent with the chain of command’s recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200, and ordered he receive an Under Other Than Honorable Conditions Discharge Certificate.

	g.  On 3 April 1978, the applicant was discharged from active duty.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service.  He completed 2 years, 8 months, and 17 days of active service.  He was awarded or authorized an Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  

4.  By regulation, 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.  An under other than honorable discharge is normally appropriate for a member who is discharged for the good of the service.

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:

The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.
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 serious criminal nature of the misconduct that led to the applicant’s discharge, 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 Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-13a (Honorable Discharge) states 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, grade, and general aptitude. 

	b.  Paragraph 1-13b (General Discharge)  states 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.

	c.  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 of 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, injustice, or clemency grounds, BCMRs shall consider the twelve states 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)	 AR20170008113


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