ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  26 June 2019

	DOCKET NUMBER:  AR20170013096


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

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 because the Army failed to allow him due process of law, to face his accusers, failure to charge him with any crime, and didn’t document his sign-in date at Fort Ord, CA.

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

	a.  He enlisted in the Regular Army 2 February 1978.

	b.  The applicant accepted nonjudicial punishment under the provisions of Article 15 on/for 22 October 1981, for without authority, failure to go at the time prescribed to your appointed place of duty.  He was reduced to the grade of private first class/E-3.

	c.  The complete fact and circumstances surrounding his discharge are not available for review with this case.  However, the record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged from active duty on 14 February 1983 in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), for the good of the service, in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 4 years, 10 months and 12 days of active service, and had 61 days of lost time.  He was awarded or authorized:

* Army Service Ribbon
* Overseas Service Ribbon
* Good Conduct Medal
* Noncommissioned Officer Professional Development Ribbon
* Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar
* Expert Marksmanship Qualification Badge with the Rifle Bar (M-16)
	d.  On 23 March 1984, the Army Discharge Review Board (ADRB) determined that applicant were properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of your discharge was denied.
4.  By regulation (AR 635-200), Chapter 10, a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service, in lieu of trial by court-martial.  
5.  In reaching its determination, the Board can consider the applicants 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 record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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


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 2 February 1978 until 9 November 1979.”
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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel

	a.  Paragraph 1-13 (Honorable discharge) 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.

	b.  Paragraph 1-13b (General discharge) 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.

	c.  Paragraph 1-13c (Under other than honorable conditions) A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, for security reasons, or for the good of the service

	d.  Paragraph 11-2 (Bad Conduct Discharge ) A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

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 ABCMRs 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, ABCMRs 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)	 AR20170013096




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