ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  5 June 2019

	DOCKET NUMBER:  AR20170008163


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).

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:

	a.  Since he was still the property of the Armed Forces, his drug addiction problem should have been considered for rehabilitation in a military facility.  He should have been given the chance to go back to the military.  Instead, he was sentenced and sent to a Federal institution.  After the termination of his sentence, he was picked up by the military police and brought back to the military for discharge in 1976.  He deserved a chance since this was his first conviction.  He wants his discharge status changed to undesirable so he can be considered for some medical benefits. 

	B.  He believes everyone is entitled to another chance.  He lost his chance of going back to finish his military service.  Since he was still military property, he could have been given the opportunity to be sent to rehabilitation.  His addiction to heroine began with some deployed Soldier returning home from Vietnam.  That is what messed him up and resulted in his incarceration that occurred while he was on leave supporting his new habit.  His record can bear witness that before his enlistment he had no problems or incarceration for drugs.  

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

	a.  He was inducted into the Army of the United States on 17 September 1969.
	b.  Court-martial charges were preferred against him on 5 March 1976.  His 
DD Form 458 (Charge Sheet) indicates that he was charged with one specification of desertion from 14 March 1970 to 3 March 1976.  

	c.  He consulted with legal counsel on 10 March 1976 and 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 is guilty of the charge against him or of a lesser included offense
* he did not desire further rehabilitation or a desire to perform further military service
* he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions
* he would be deprived of many or all Army benefits administrated by the Veterans Administration
* he may be deprived of his rights and benefits of a Veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge
* he elected not to submit statements in his own behalf

	d.  Consistent with the chain of command recommendation, on 16 March 1976, the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be furnished an Undesirable Discharge Certificate and reduced to the lowest enlisted pay grade.  

	e.  On 19 March 1976, he was discharged from active duty under the provisions of AR 635-200, chapter 10.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 6 months and 13 days of active service with 2,181 days of lost time.

	f.  On 27 March 1981, the Army Discharge Review Board denied his application to have his discharge upgraded.  

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 Undesirable Discharge Certificate will normally be furnished an individual who is discharge 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:

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 short term of service completed prior to the misconduct, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events which led to his discharge, the Board concluded that the characterization received at the time of discharge was appropriate.

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 Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority 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.

	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.  Chapter 10 of this regulation states an individual 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 Undesirable Discharge Certificate will normally be furnished an individual who is discharge 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 for Correction of the 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)	AR20170008163


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