ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  14 June 2019

	DOCKET NUMBER:  AR20170009830


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge to general, under honorable conditions.

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 or Dismissal)
* Request Pertaining to Military Records

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 should get some medical benefits because of his service before reenlistment.  He did not get a dishonorable discharge and he would like to get it upgraded to general, under honorable conditions from other than honorable conditions so he can get medical benefits and get credit for the time he served his country (4 years and 11 months).  He feels he should be entitled to something for putting his life on the line for his country.  When he went into the Army, he was only 17 years old.  He started to drink and do drugs which got him into trouble, but nothing violent.  He picked a lot of bad habits while he was in the military and they have affected him most of his life.

3.  The applicant provides a request pertaining to military records, which shows he requested his military records through the National Archives and Records Administration.

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

	a.  He enlisted in the Rhode Island Army National Guard (RIARNG) on 12 January 1977.

	b.  He entered active duty for training on 29 April 1977 and was released from active duty on 13 August 1977.

	c.  He was discharged from the RIARNG on 4 May 1980 and enlisted in the Regular Army on 5 May 1980.

	d.  He accepted nonjudicial punishment on/for:

* 10 July 1980, for unlawfully striking another Soldier; his punishment included reduction to private first class/E-3
* 29 April 1981, for disobeying a lawful order
* 30 June 1981, for unlawfully striking another Soldier

	e.  His record is void of a DD Form 458 (Charge Sheet) which would have indicated the charge(s) and specification(s) preferred against the applicant.

	f.  The complete facts and circumstances surrounding the applicant’s discharge are unavailable for the Board to review.  However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which outlines the reason for his separation.

	g.  He was discharged from active duty on 24 July 1981 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with an under other than honorable conditions characterization of service.  His DD Form 214 shows he completed 1 year, 2 months, and 20 days of active service with 1 year, 5 months, and 15 days of prior active service, and 5 months and 27 days of tot prior inactive service.  It also shows he was awarded or authorized the Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  By regulation, an individual 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 conditions characterization of service will normally be issued an individual who is discharged for the good of the service.

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 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 pattern of misconduct which involved some violent behavior towards others which resulted in the applicant’s separation, 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.  Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, sets for 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) 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 that regulation states an individual 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 conditions characterization of service will normally be issued an individual 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 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)	 AR20170009830


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