ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20170010859


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

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 he is requesting an upgrade of his discharge to honorable.

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

   a.  He enlisted in the U.S. Army Reserve on 16 November 1977.  He entered active duty on 30 June 1978.

b.  He served in Korea from 28 March 1980 to 26 March 1981.

   c.  He received nonjudicial punishment (NJP) on/for:

* 12 June 1980, for wrongful possession of a dangerous drug; his punishment included reduction to private first class (PFC)/E-3 and the reduction was set aside on 21 October 1980
* 6 February 1981, for wrongful possession of marijuana; his punishment included reduction to private/E-2
* 4 March 1981, for assault with a bat
* 22 January 1982, wrongful appropriation of a check of a value of $303.00, the property of the United States Government
* 4 February 1982, wrongful possession of marijuana

   d.  On 9 July 1982, court-martial charges were preferred against him.  His 
DD Form 458 (Charge Sheet) indicates he was charged with one specification of assault with intent to inflict grievous bodily harm by striking another Soldier.  He held the rank/grade of private/E-2.

	e.  On 16 July 1982, after consulting with legal counsel he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  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 further military service
* he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions and furnished an Under Other than Honorable Discharge Certificate
* 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 undesirable discharge

	f.  On 23 July 1982, consistent with the chain of command recommendations, the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted grade.

	g.  On 30 July 1982, he was discharged from active duty under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 for the good of the service.  He completed 4 years, 1 month, and 1 day of active service.  It also shows he was awarded or authorized Army Service Ribbon and Overseas Service Ribbon.

4.  By regulation, an individual who has committed an offense or offenses, the punishment for any of which includes a bad conduct discharge or dishonorable discharge, may submit a request for discharge for the good of the service.  An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged 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 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 pattern of misconduct, some of which involved serious, violent behavior, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	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 member'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 member whose military record is satisfactory but 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 discharge or dishonorable discharge, may submit a request for discharge for the good of the service.  An Under Other than Honorable Discharge Certificate normally is appropriate for a member 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)	 AR20170010859


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