ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  10 July 2019

	DOCKET NUMBER:  AR20170014069


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* 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 he was kicked out of the military for wrongful appropriation of tennis shoes.  He says that his unit went to the field and he was attached to the rear detachment.  He says that his sleeping quarters were relocated and he left his tennis shoes in his room so he grabbed the first pair that he saw and used them.  He states that he did return the shoes.  After that he was threatened with a general court-martial and given the option to get out of the military by way of chapter ten.  He says that he requested it not fully understanding what it was.

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

	a.  He enlisted in the Regular Army on 13 August 1979. 

	b.  On 2 December 1981, he accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for having alcohol in his assigned barracks room. 

	c.  He reenlisted in the Regular Army on 13 February 1982 at the rank of specialist/E-4. 
	d.  On 20 June 1983, he departed his unit in an absent without leave status and did not return to military control until 5 July 1983.

	e.  According to his DD Form (Charge Sheet), dated 14 March 1984, court-martial charges were preferred against him for one specification failing to go at the time prescribed, to his appointed place of duty on 23 January 1984 and one specification of wrongfully appropriating one pair of running shoes, the property of another Soldier’s, on 14 January 1984.

	f.  On 14 March 1984, 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.

	g.  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

	h.  On 14 March 1984, his chain of command recommended he be discharged for the good of the service with an under other than honorable conditions discharge.  

	i.  Consistent with the chain of command's recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduced in rank to private/E-1.

	j.  His DD Form 214 shows he was discharged on 4 April 1984, 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 4 years, 7 months and 14 days of active service, with lost time from 20 June 1983 to 04 July 1983.  His record also shows he was awarded or authorized:

* Parachute Badge
* Marksman Marksmanship Qualification Badge (M203)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  By regulation, a member who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice (UCMJ) and the manual for court-martial (MCM), 1969 (Rev), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

5.  Regulatory guidance provides for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” enter “Continuous Honorable Active Service From” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above.

6.  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 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.  The applicant accepts responsibility for his actions and was remorseful with his application, demonstrating he understands his actions were not that of all Soldiers.  The Board agreed an under honorable conditions (General) character of service is warranted, as he did not meet the standards of acceptable conduct and performance of duty for Army personnel making him suitable for an Honorable characterization.

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 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 reissuing him a DD Form 214 for the period ending 11 April 1984 showing his character of service as under honorable conditions (General).

2.  The Board also noted that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214.  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 13 August 1978 to                              12 February 1982.”
3.  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 changing his character of service to Honorable.

	 
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) provided 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) provided that 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 10 of that regulation provided, in pertinent part, a member who has committed an offense or offenses, the punishment for which, under the UCMJ and the MCM, 1969 (Rev), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  The provisions of the Table of Maximum Punishments, section B, paragraph 127c, MCM 1969 (Rev) 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 member, or, where required, after referral, until final action on the case by the court-martial convening authority.  A member who is under a suspended sentence of a punitive discharge
may likewise submit a request for discharge for the good of the Service.

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)	 AR20170014069


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