ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  14 June 2019

	DOCKET NUMBER:  AR20170010947


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

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 to his under other than honorable discharge, because he believes the noncommissioned officer was having a terrible day and made the wrong decision, which led to his discharge.  He knows he was an outstanding leader.

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

	a.  He enlisted in the Regular Army on 15 June 1979 and reenlisted on 15 December 1981 in the rank of specialist/E-4 for a period of 4 years.

	b.  He accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 25 July 1980, for stealing some processed film valued at $2.00 – reduced in rank to private/E-2
* 7 December 1982 for wrongfully having in his possession residue, more or less, of marijuana – reduced in rank to specialist/E-4
* 23 February 1983, for, while posted as a sentinel, being found asleep upon his post – reduced in rank to private/E-2


	c.  On 14 March 1983, the applicant's commander notified him of his intent to initiate action to effect his discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), chapter 14, for misconduct (patterns of misconduct).  

	d.  The applicant acknowledged receipt and consulted with counsel. Following consultation with legal counsel, he understood his rights and acknowledged the following:

* he understood if this discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he understood that he may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

	e.  His immediate and intermediate commanders recommended approval of his chapter 14 discharge with the issuance of an under other than honorable conditions discharge.  

	f.  Consistent with the chain of command's recommendation, the separation authority approved his discharge on 29 April 1983, under the provisions of AR 635-200, chapter 14-12c, and directed the issuance of an under other than honorable conditions discharge.

	g.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 10 May 1983, under the provisions of AR 635-200, chapter  
14-12c and given a characterization of under other than honorable conditions discharge.  It also shows he had 3 years, 10 months and 26 days of active service with no lost time.
He was awarded or authorized:

* Marksmanship Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Badge with Hand Grenade
* Army Service Ribbon
* Good Conduct Medal

4.  By regulation, (AR 635-200), action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed or rehabilitation is impracticable or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record).
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 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, as well as the lack of character evidence submitted by the applicant to show that 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.

However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict the military service of the applicant.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 15 June 1979 until 14 December 1981.”
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.
	 
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, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

a.  Paragraph 3-7a (Honorable) provides 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) 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.
A characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty (AD).

	c.  Chapter 14 of this regulation establishes policy and prescribes procedures for the separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and conviction by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed or rehabilitation is impracticable or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record).

	d.  Paragraph 14-12c of this regulation prescribes that members are subject to separation per this section for commission of a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the manual for court-martials.

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.


ABCMR Record of Proceedings (cont)	 AR20170010947


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