ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  4 September 2019

	DOCKET NUMBER:  AR20170013989


APPLICANT REQUESTS:  a reconsideration to his previous request for an upgrade to 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002072938 on 23 September 2002.

2.  The applicant that he was framed because he was the squad leader of five lower ranking persons and three of which were using and selling meth.  He had no idea that they were doing this and he was drug tested and his test was negative.  He has been out since 1995 and has no criminal history and has been a Corrections Officer in the past.  If he had a problem, he would have some sort of history with a criminal record by now.  He has tried right after his discharge, to have the Board overturn it, but have not been successful.  All he has is his proof that his conduct as a civilian shows no criminal history and that he has never been in trouble with the law.  He feels that he was set up by a Sergeant First Class, who was stationed in Germany with him and was racist and did not like him.  He essentially got the shaft by him and his beliefs.  He thinks that after so many years as a good citizen, it should show that he is what he has said all along, a productive law abiding citizen.  He is asking the Board to upgrade his discharge, so that he can try out law enforcement within the state that he resides.

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

	a.  He enlisted in the Army National Guard on 22 August 1991.

	b.  On 7 December 1992, he received State Active Duty Orders calling him to active duty to assist local and state law enforcement authorities during Hurricane Andrew.

	c.  On 6 November 1993 he requested to enlist in the Regular Army.
	d.  He was honorably discharged from Army National Guard on 27 January 1994 and on 28 January 1994 he enlisted in the Regular Army. 

	e.  He served overseas in Germany from 8 February 1994 until 5 June 1995.

	f.  According to his DD Form 458 (Charge Sheet), dated 2 February 1995, court-martial charges were preferred against him for one specification of wrongfully using marijuana between on or about February 1994 and December 1994 and one specification for wrongfully allowing a private/E-2, to operate a vehicle under his control, knowing that he was intoxicated.

	g.  According to his DD Form 458 (Charge Sheet), dated 18 April 1995, court-martial charges were preferred against him for two specifications of failing to go at the time prescribed to his appointed place of duty on 28 February 1995 and 3 March 1995 and one specification of operating a passenger car recklessly while drunk and subsequently getting into an accident.

	h.  On 18 April 1995, his chain of command all recommended that he tried by Special Court-Martial, empowered to adjudge a Bad Conduct Discharge.

	i.  On 28 April 1995, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under UCMJ and the possible effects of a bad conduct or dishonorable discharge if the request is approved and of the procedures and rights available to him.

	j.  Following consultation with counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood if his discharge request 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 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

	k.  On 3 May 1995, his chain of command recommended he be discharged for the good of the service with an under other than honorable conditions discharge.  

	l.  Consistent with the chain of command's recommendation, on 8 May 1995, the separation authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge and a reduction in rank to Private/E-1.

	m.  His DD Form 214 shows he was discharged on 6 June 1995, in accordance with AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 1 year, 4 months and 9 days of net active service, and 1 year, 11 months and 4 days of total prior service with no lost time.

	n.  He was awarded or authorized the:

* National Defense Service Medal
* Army Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  On 5 April 2002, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable.  The ADRB denied his request for an upgrade of his discharge. 

5.  By regulation, a soldier who has committed an offense or offenses, the punishment for which, under the UCMJ and the manual court-martial (MCM), 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service

6.  The Board should 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 pattern of offenses of a criminal nature, 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.  AR 15-185 (Army Board for Correction of Military Records (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.


2.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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 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) provides that 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.  A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization. It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty.

	c.  Chapter 10 of that regulation provides, in pertinent part, that a soldier who has committed an offense or offenses, the punishment for which, under the UCMJ and the manual court-martial (MCM), 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The provisions of RCM 1003(d), MCM 1984, do not apply to requests for discharge per this chapter unless the case has been referred to a court-martial-authorized to adjudge a punitive discharge. The discharge request may be submitted after court-martial charges are preferred against the soldier, or, where required, after referral, until final action by the court-martial convening authority.

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170013989


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