ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 July 2019

	DOCKET NUMBER:  AR20170011292


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

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:  

     a.  His discharge should be upgraded to honorable, because of false states made by his Commander.  He was told his discharge would be upgraded to an honorable in six months.  He was also AWOL for a short time which he states he was told to do to get out of the service.  He was never told he would lose all of his benefits and he only spoke to a JAG attorney over the phone.  

     b.  While on a training mission his Lieutenant kept a bunch of CS, grenade simulators, blank ammo and smoke grenades in his M113.  Other members knew of this and planned to steal the equipment.  He told the Lieutenant and his reply was if they do it’s on them.  He was the driver of the M-113, so he called CID.  CID came and got the equipment.  He asked his Commander if he could be transferred to another unit and was told he was going to run him out of the Army. This is when the chapter 10 came up, he was told to fail a drug test or go AWOL either way he would be gone.

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

   a.  He enlisted in the Reserves on 30 January 1985 and did an immediate reenlistment in the Regular Army on 22 March 1985.
b.  He accepted non-judicial punishment on/for:

* 2 April 1986 for absenting himself from his unit; his punishment consisted of reduction to E-1 suspended for 90 days
* 2 June 1986 3 Specifications of failing to go at the time prescribed to his appointed place of duty.

  c.  The applicant’s record does not contain a copy of his DD Form 458 (Charge Sheet), but according to the applicant’s request, court martial charges were preferred against him on or about 28 August 1986.  His request for discharge indicates he was charged with one specification of willful disobedience of a lawful order from a noncommissioned officer.
  
  d.  He consulted with legal counsel on 28 August 1986 and subsequently requested discharge under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  He acknowledged:
  
* he is guilty of the charge against him or of lesser included offense
* he did not desire further rehabilitation
* 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.
* maximum punishment
* he would be deprived of many or all Army benefits of a Veteran under both Federal and State laws.
* he would be deprived of many or all Army benefits administrated by the Veterans Administration
* he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge.

   e.  Consistent with the applicant’s request and the chain of commands recommendations, on 10 September 1986, the separation authority approved the applicants 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 pay grade.
   
   f.  On 17 September 1986, he was discharged from active duty under the provisions of  AR 635-200, chapter 10.  He completed 1 year, 5 months and 12 days of active service.  It also shows he was awarded or authorized:
   
* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Riffle Bar
* 1st Class Marksmanship Qualification Badge with Grenade Bar

4.  By regulation, a member who has committed an offense or offenses, the punishment for any of which include a bad conduct or dishonorable discharge may submit a request for discharge 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 review of the application and all evidence, the Board determined relief is not warranted.  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.  Based upon the relatively short term of honorable service completed prior to a pattern of misconduct, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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

:	:	:	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 Separation – 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 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) states 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, homosexuality, security reasons, or for the good of service.

d.  Chapter 10 of this regulation states 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

3.  AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the 
ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

4.  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 (BCMNRs) 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 court-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 on the basis of 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.  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)	 AR20170011292


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