ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  7 June 2019

	DOCKET NUMBER:  AR20170008586


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge from the Armed forces of the United States

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 believes that he should have been reprimanded and given another chance.  He believes that he was not given a fair chance and that he was being singled out because of a prior court-martial.  He was Absent Without Leave (AWOL) but came back on his own.  He admits he now knows, that he went about it the wrong way and wish he would have done it differently.  He received an under other than honorable discharge.

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

a.  He enlisted in the Regular Army (RA) on 28 August 1979.

   b.  He accepted non-judicial punishment on/for:

* 28 January 1981 for assaulting another Soldier his punishment included forfeiture of $50.00 for one month and 7 days extra duty
* 14 May 1981 for missing movement his punishment included forfeiture of $100.00 for one month, 7 days extra duty and 14 days restriction
* 23 March 1982 for failure to obey a lawful order his punishment included reduction to E-1, 7 days extra duty and 7 days of restriction
* 21 July 1982 for being AWOL from 18 June to 20 July 1985 his punishment included forfeiture of $275.00 for two month

c.  On 14 August 1981, he was convicted before a special court-martial for one 
specification of assault upon Mr. XX----, by cutting him on the body and arms with a knife and did wit, a punctured lung, cut liver, and deep cuts a dangerous weapon.  He was confined at hard labor for 90 days.

d.  On 24 May 1982, the applicant’s immediate commander notified the applicant of 
his intent to eliminate him from the military under the provisions (UP) of chapter 14, Army Regulation (Personnel Separations – Enlisted Personnel) other acts or patterns of Misconduct.

e.  On 1 June 1982, he was advised by counsel of the basis for the contemplated 
action to accomplish his separation for misconduct UP of Section V, Chapter 14, AR 635-200, and its effects; the right available to him; and the effect of any action taken by him waiving his rights.  He acknowledged:

* he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life
* he waived his rights for a personal appearance before the board
* he waived his appearance before a board of officers
* he would be ineligible to apply for enlistment in the Army for a period of 2 years after discharge

f.  Consistent with the chain of command recommendations, on 16 July 1982, the 
separation authority approved the applicant’s discharge UP of paragraph 14-34b, 
AR 635-200, that he be separated for misconduct, IAW paragraph 14-33b (1), AR 635-200, SPD code JKA and issued an Under Other Than Honorable Discharge Certificate and reduced to the lowest rank.

g.  The applicant was discharged on 23 July 1985.  His DD Form 214 (Certificate of 
release or Discharge from Active Duty) shows he completed 2 years and 9 months of active service with lost time from 14 August 1981 to 6 October 1981 and 18 June 1982 to 19 June 1982.

h.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon and the Marksman Marksmanship Qualification Badge (M-16).

4.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

5.  By regulation, when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.  

6.  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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the violent criminal behavior which led to the applicant’s discharge, the Board concluded that the characterization of service 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.  AR 635-200 Personnel Separations-Enlisted Personnel, in effect at the time, sets forth the basic authority for separation of enlisted personnel.

	a.  Paragraph 1-13a(1) 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 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 there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. 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 reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ.  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge.  It is pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. When there is doubt as to whether an honorable or general discharge should be furnished, the doubt should be resolved in favor of the member.

	b.  Paragraph 1-13a(2) states an honorable discharge may be furnished when disqualifying entries in the member's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service.  Careful consideration will be given to the nature of the offense and sentence adjudged by a court-martial.  When, in the opinion of the officer effecting discharge, these have not been too serious and severe, and the remainder of the service in the enlistment has been such that an honorable discharge may be awarded, doubt should be resolved in favor of the member.

	c.  Paragraph 1-13b 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.  The recipient of a general discharge is normally a member whose military record and performance is satisfactory.  The member may have had frequent non-judicial punishments but not for serious infractions.  He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record.

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)	AR20170008586


4


1