ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  11 July 2019

	DOCKET NUMBER:  AR20170010941


APPLICANT REQUESTS: 

* an upgrade of his under conditions other than honorable discharge
* the Board instruct the Federal Bureau of Investigation (FBI) to remove the entry from the NCIC (National Crime Information Center) database

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 feels he was unjustly charged with possession of less than 0.10 grams of heroin on 9 September 1980.  The heroin was found on the outside of the second floor window ledge of his barracks room.  He shared the room with three other Soldiers.  He states the package on the window ledge was noticed by military police on the grounds of the barracks building.  The military police searched his room while he was the only occupant there.  He was questioned by the military police.  He denied the heroin belonged to him.  He states that his fellow roommates were never questioned by the military police.  The package containing the heroin was never checked for his finger prints; however, the military police determined the package belonged to him.  He was reduced in rank and offered an under other than honorable conditions discharge.  He states he was not tested for drug use, offered counseling or rehabilitation.  He was not offered probation or other disciplinary options.  He was close to completing his term of duty.  He hoped that his prior service record and actions would have been favorably considered.

3.  With respect to removing the applicant's name from the titling block of a U.S. Army Criminal Investigation Command investigation that led to his name entered into the NCIC (National Crime Information Center), the applicant's request is premature.  

	a.  Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider an application if it determines that an applicant has not exhausted all administrative remedies available to him/her.  There is no evidence that the applicant has petitioned the U.S. Army Criminal Investigation Command, Russell Knox Building, 27130 Telegraph Road, Quantico, VA 22134-2253, and were denied relief.

	b.  Department of Defense Instruction 5505.7 contains the authority and criteria for titling decisions.  It states, in pertinent part, that titling only requires credible information that an offense may have been committed.  The primary purpose for titling an individual as the subject of a criminal report of investigation is to ensure that information contained in the report can be retrieved at some future point in time, for law enforcement and security purposes.  This is strictly an administrative function.  Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the procedure to administratively remove a titling action from the Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.  

	c.  This issue will not be discussed further in this record of proceedings. 

4.  Review of the applicant's service records shows:  

a.  He enlisted in the Regular Army on 25 January 1977.

b.  He served in Germany from 3 September 1978 to 19 February 1981.

   c.  On 6 March 1980, he was convicted by a special court-martial of one specification of unlawfully striking another Soldier.  The court sentenced him to reduction to E-2, restriction, and forfeiture of pay.  The convening authority approved the sentence on 4 April 1980. 

d.  On 9 September 1980, he was charged with possession of about 0.06 grams of 
suspected heroin based on the criminal investigation division (CID) report. 

  e.  The complete facts and circumstances surrounding his discharge are not available to the Board for review with this case.  However, his service record contains: 

		(1)  DA Form 2-1 (Personnel Qualification Record) that shows in Section III (Service, Training and Other Dates), Item 18 (Appointments and Reductions) and Section VII item 35 (Record of Assignment, Effective Date) he was reduced to private/E1, on 24 October 1980 

		(2)  DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 22 December 1980 in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), with an under other than honorable conditions characterization of service.  It also shows he completed 3 year, 10 months, and 28 days of active service, and he was awarded or authorized Expert Marksmanship Qualification Badge with Pistol Bar (45 Caliber). 

	f.  On 8 January 1983, the applicant applied to the Army Discharge Review Board and, the board denied his request.  

4.  By regulation, AR 635-200, a member who has committed an offense or offenses, the punishment for any of 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 discharge is normally 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 misconduct resulting in the applicant’s separation involving violence towards others, 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), sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  
   a.  Paragraph 3-7a (Honorable discharge) states that 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 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 that regulation provides that a member who has committed an offense or offenses, the punishment for any 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 discharge is normally appropriate for a member who is discharged for the good of the service.  However, the discharge authority may direct an honorable or general discharge, if such are merited by the member’s overall record during the current enlistment.

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)	 AR20170010941


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