ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  27 June 2019

	DOCKET NUMBER:  AR20170012501


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)

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 because there was a corrected copy of special court-martial order number 79.  It changed his discharge from bad conduct discharge to under other than honorable conditions therefore there was some type of error.  He would like his discharge upgraded to general under honorable conditions due to the error.

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

	a.  He enlisted in the Regular Army on 30 April 1976.

	b.  He accepted non-judicial punishment under article 15 on/for:

* 11 July 1977, disrespect to a superior non-commissioned officer by saying you are a c--k sucker or words to that effect
* 3 February 1978, wrongfully have in his possession 4.2 grams more or less of marijuana

	c.  On 14 December 1979, at Wiesbaden, Germany, by Special Court-Martial Order Number 1, dated 16 January 1980, he was convicted by a special court-martial for the eight specifications of:

* wrongfully have in his possession 2.0 grams, more or less, or opiate and marijuana
* wrongfully sell 2.0 grams, more or less, or opiate and marijuana
* wrongfully transfer 2.0 grams, more or less, or opiate and marijuana
* wrongfully have in his possession a trace amount of  marijuana
* wrongfully have in his possession 1.0 grams, more or less, of a habit forming narcotic drug, to wit: heroin
* wrongfully sell 1.0 grams, more or less, of a habit forming narcotic drug, to wit: heroin
* wrongfully transfer 1.0 grams, more or less, of a habit forming narcotic drug, to wit: heroin
* wrongfully have in his possession 1.0 grams, more or less, of marijuana

	d.  The court sentenced him to forfeiture of $167.00 pay per month for a period of 6 months, be confined at hard labor for 90 days, and to be separated from the service with a bad conduct discharge (BCD).  

	e.  On 16 January 1980, the sentence was approved but so much thereof as is in excess of a BCD and confinement at hard labor for one month is suspended for 5 months from 14 December 1979, at which time unless the suspension is sooner vacated, shall be remitted.  The record of trial is forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.

	f.  DD Form 458 (Charge Sheet) indicates court martial charges were initiated on 5 March 1980.  He was charged with two specifications of AWOL for a period from 22 January 1980 until 29 January 1980 and 31 January 1980.  Charges were not preferred due to the AWOL.

	g.  On 30 September 1980, by Special Court-Martial Order Number 79, the appellate review affirmed the judgement and the convening authority ordered the sentence duly executed.

	h.  The applicant’s record is void of any separation documentation.  However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 10 October 1980, in the rank of private/E-1, under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) chapter 10 (Discharge for the Good of the Service) with an under other than honorable conditions characterization of service.  

		(1)  He had total active service of 4 years, 1 month, and 17 days, and he had lost time from 14 December 1979-7 January 1980, 22 January 1980-28 January 1980, 31 January 1980, and 1 February 1980-21 April 1980.


		(2)  He was awarded the Expert Qualification Badge (M-16) and 2nd class Hand Grenade Qualification Badge.  

4.  By regulation (AR 635-200), chapter 10 provides 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.  A discharge under other than honorable conditions is normally considered appropriate.

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 lengthy pattern of misconduct, which included distributing drugs to others, the Board agreed that the applicant's discharge characterization was warranted.

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 1-13a(1) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude.  Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ.  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge.  It is pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. When there is doubt as to whether an honorable or general discharge should be furnished, the doubt should be resolved in favor of the member.

	b.  Paragraph 1-13a(2) states an honorable discharge may be furnished when disqualifying entries in the member's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. Careful consideration will be given to the nature of the offense and sentence adjudged by a court-martial.  When, in the opinion of the officer effecting discharge, these have not been too serious and severe, and the remainder of the service in the enlistment has been such that an honorable discharge may be awarded, doubt should be resolved in favor of the member.

	c.  Paragraph 1-13b states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory.  The member may have had frequent non-judicial punishments but not for serious infractions.  He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record.

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170012501


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