ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 June 2019

	DOCKET NUMBER:  AR20170009703


APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to under honorable conditions.

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 he is a prior Soldier and is in need of Veterans Affair (VA) benefits for medical conditions due to military service connected conditions.  He has learned from his mistakes while the punishment was strikingly harsh on his life affects.  He regrets his actions and request that the decision to change his discharge be reconsidered based on his promise to adhere to all good intentions in the future.  The military has afforded him many opportunities and taught him various skills.  He had the distinct pleasure of serving under strong leaders and their mentorship has better prepared him for life in all aspects.  He is grateful for all that the Military has provided for him.

3.  A review of his service records shows:

	a.  He enlisted on 31 July 1980 in to the Regular Army (RA).  He served in Germany from 23 June 1982 to 19 February 1983.

	b.  On 3 November 1981, the applicant accepted nonjudicial punishment for one specification of wrongfully having marijuana in his possession.  His punishment consisted, in part, of reduction to private/E-2 (suspended).

	c.  His records are void of a DD Form 458 (Charge Sheet).

	d.  He consulted with legal counsel on 13 January 1983 and 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:

* if his request was accepted, he may be discharged under conditions other than honorable 
* if approved, 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 because of an under other than honorable conditions discharge

	e.  Consistent with the chain of command's recommendation, on 2 February 1983, the separation authority approved the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, discharge for the good of the service with an under other than honorable conditions discharge.

	f.  On 20 May 1983, he was discharged from active duty under the provisions of 
AR 635-200, Chapter 10 with an under other than honorable conditions characterization of service.  He completed 2 years, 9 months, and 20 days of active service.  He was awarded or authorized:

* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar (M16)
* Expert Marksmanship Qualification Badge with Grenade Bar

4.  By regulation (AR 635-200), Soldiers who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court–martial.  This do not apply to requests for discharge per this chapter unless the case has been referred to a court–martial authorized to adjudge a punitive discharge.  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 

5.  By regulation (AR 635-200), a member who requests discharge as prescribed in chapter 10 may be issued an under other than honorable conditions discharge if he or she has been afforded the opportunity to consult with a consulting counsel.  The member must certify in writing that he or she, understands that he or she may receive a discharge under other than honorable conditions.  The member must understand the adverse nature and possible consequences of such a discharge.  The member must personally sign a request for discharge.
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, the Board found the relief was not warranted.  One member voted to grant a general since he did not know the basis for the chapter 10 and he served almost 3 years before the separation.  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.  One member voted to grant an under honorable conditions characterization of service since the applicant contends he did not know the basis for the chapter 10, and he served almost 3 years before the separation.  Based upon the record, the majority of 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

:	x	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

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 Separation – Enlisted Personnel), in effect at the time, sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when 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 a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-7c (Under Other than Honorable Conditions), a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or for the good of service.

	d.  Chapter 10 of this regulation states, Soldiers who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court–martial.  This do not apply to requests for discharge per this chapter unless the case has been referred to a court–martial authorized to adjudge a punitive discharge.  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 

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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170009703


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