ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20170008743


APPLICANT REQUESTS:  reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  he submits a DD Form 149 (Application for Correction of Military Record).

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150009640 on 26 April 2016.

2.  The applicant states he would like copies of any of his military records that he is entitled.  He has been and would like to have his discharge upgraded.  He is requesting an abstract of his service.  He enlisted in the Regular Army (RA) in November 1976.

3.  Review of the applicant’s military record shows:

	a.  He enlisted in the RA on 16 November 1976.  He was promoted to pay grade E-2 on 16 June 1977.

	b.  He accepted nonjudicial punishment (NJP) on/for:

* 19 July 1977 – violating a lawful general order; his punishment included a reduction to pay grade E-1; he was reduced accordingly on 19 July 1977
* 21 November 1977 – failing to go at the time prescribed to formation

	c.  On 2 June 1978, he was issued a Letter of Reprimand for possessing one roach clip, one plastic box, one screw cap, and one smoking device which contained a residue of marijuana.  The letter also stated that due to a legal technicality no charges were being pressed at that time.  The letter advised that it was to bring to his attention that disregard of the law and failure to obey unit policy was a clear demonstration of his lack of responsibility and inability to perform as a Soldier of his rank.

	d.  On 13 June 1978, he accepted NJP for being derelict in the performance of his duties.  

	e.  He was again promoted to pay grade E-2 on 1 August 1978.

	f.  On 7 December 1978, he was convicted by a special court-martial of one specification each of being absent without leave from 11 September to 11 October 1978 and from 20 October to 17 November 1978, behaving with disrespect toward his superior commissioned officer, and breaking restriction.  The court sentenced him to reduction to E-1, a forfeiture of $200.00 pay per month for 5 months, and confinement at hard labor for 5 months.  He was reduced accordingly on 7 December 1978.

	g.  On 20 December 1978, the convening authority approved the sentence and ordered it duly executed.  On 29 December 1978, the convening authority suspended the unexecuted portion of the sentence to confinement at hard labor for 5 months until 30 April 1979.

	h.  He accepted NJP on/for:

* 9 January 1979 – failing to go to his appointed place of duty
* 11 January 1979 – breaking restriction
* 5 February 1979 – participating in a breach of peace by wrongfully engaging in a fist fight; he elected to appeal and the final disposition of the appeal is unavailable for review by the Board
* 28 February 1979 – breaking restriction on two occasions

	i.  A Standard Form (SF) 513 (Clinical Record – Consultation Sheet), dated 22 February 1979, shows his command requested he undergo a psychiatric evaluation due to his chronic history of impulsive and self-destructive actions.

	j.  On 2 March 1979, a Social Work Officer, stated the applicant underwent an evaluation by the Unit Social Work Officer on 19 February 1979 and the Community Mental Health Activity (CHMA) psychiatrist on 22 February 1979.  The social worker stated the CHMA psychiatrist clinically found:

* there was no evidence of psychosis, neurosis, or other disorders which would require referral for psychiatric treatment
* it was believed the applicant would not adjust to the military setting; his potential for return to duty was minimal, and further rehabilitation efforts would prove non-productive
* his impression was the applicant had a passive-aggressive personality, chronic, severe and he was unable to adapt or rehabilitate
* he recommended the applicant’s separation from the military service under the provisions (UP) of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), due to a personality disorder

	k.  An SF 513, dated 15 March 1979, shows he again underwent an evaluation by the CHMA psychiatrist.  The psychiatrist stated:

* the applicant represented no active suicidal risk at present, but due to an excessive impulsive and passive-aggressive tendency, could precipitously hurt himself when forced with any frustrating situation, including confinement
* the recommendation for a chapter 13 discharge was unsuitability as the applicant had since gone AWOL, expressed suicidal ideation, and he was pending pre-discharge confinement
* a chapter 13 discharge was the ideal route of discharge; the dilemma was his repeated disciplinary problems making him a candidate for a misconduct discharge and the route of discharge was unclear
* the risk of personal harm or suicide was enough to warrant immediate separation rather than confinement
* he recommended any type of discharge as soon as possible

	l.  On 20 March 1979, the convening authority vacated the unexecuted portion of his sentence to confinement for 5 months. 

	m.  His available record contains the following:

		(1)  Memorandum of Discharge of Personnel for Misconduct – Frequent Incidents, dated 22 March 1979, wherein his immediate commander recommended the applicant’s discharge under paragraph 14-33, AR 635-200, for misconduct due to frequent incidents of a discreditable nature.  The commander stated discharge for unsuitability was not deemed appropriate because the applicant’s behavior was not due to an inability to satisfactorily perform within the meaning of unsuitability.  

		(2)  Memorandum of Separation UP of Chapter 14, AR 635-200, dated 28 March 1979, wherein after consulting with counsel, he acknowledged the basis of contemplated action for his separation for misconduct UP of chapter 14, AR 635-200; its effects; and the rights available to him.  He also acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him and he could be ineligible for many or all benefits as a veteran under both the Federal and State Law and he could expect to encounter substantial prejudice in civilian life.  He waived his rights and elected not to submit a statement in his own behalf.

		(3)  memorandum of Discharge of Personnel for Misconduct that shows the separation authority directed the applicant’s discharge and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

		(4)  DD Form 214 showing he was discharged on 20 July 1979, accordingly.  The form also shows he completed 2 years and 21 days of net active service and 224 days of time lost.  His service was characterized as under other than honorable conditions and he was issued an Under Other Than Honorable Conditions Discharge Certificate.  The form further shows he was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

	n.  On 26 April 2016, the ABCMR determined the type of discharge directed and the reason for separation were appropriate considering all the facts of the case and denied his petition for an upgrade of his discharge.

4.  By regulation (AR 635-200) action will be taken to separate a member for misconduct such as frequent incidents of a discreditable nature.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

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 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 short term of service completed prior to a pattern of misconduct, some involving violent behavior, the Board concluded that the characterization of service received at the time of separation 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.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

	a.  Paragraph 3-7a (Honorable discharge) – an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b (General discharge) – a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a member whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 – Soldiers were subject to separation for misconduct because of frequent involvement in incidents of a discreditable nature with civil or military authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally considered appropriate.

2.  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 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, an injustice, or clemency 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.


ABCMR Record of Proceedings (cont)	 AR20170008743


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