ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  9 July 2019

	DOCKET NUMBER:  AR20170014197


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

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).

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 AR20050004546 on 14 October 2005.

2.  The applicant states an upgrade would help him avoid becoming homeless and help him gain employment.

3.  A review of the applicant’s service record shows he enlisted into the Regular Army on 29 June 1974 and served in Germany.

4.  He accepted nonjudicial punishment (NJP) under Article 15 on/for:

	a.  20 September 1974, for being absent from his unit 

	b.  9 October 1974, for failing to go at the time prescribed to his appointed place of duty.

	c.  30 July 1975, for disrespecting a superior non-commissioned officer, striking another Solider, drunk and disorderly in uniform in a public place, and without authority absent himself from his unit from 8 July 1975 to 16 July 197.  Punishment consisted of reduction in rank to private/E-1, 30 days restriction, 45 days extra duty, and forfeit $172 per month for two months. 

5.  On 29 October 1975, he consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.

6.  In doing so, he acknowledged the charges preferred against him under the Uniform Code of Military Justice (UCMJ), authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged:
* he had not been subjected to coercion with respect to his request for discharge
* he had been advised of the implications that were attached to the discharge
* he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the VA
* he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

7.  His immediate commander forwarded the initiated separation action against him to the next higher command.  His commander recommended a general discharge.

8.  Consistent with the chain of command’s recommendations, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 10.

9.  On 2 December 1975 he was discharged from active duty under the provision of AR 635-200, chapter 10.  His service was characterized as under conditions other than honorable.  He completed 1 year, 5 months, and 4 days of active service.

10.  The applicant applied to the Army Board for Correction of Military Records; however, the Board denied his request for an upgrade.

11.  By regulation, discharges under the provision of AR 635-200, chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court-martial.

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 short term of honorable service completed prior a pattern of misconduct, which included violent behaviors towards others, 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 to amend the decision of the ABCMR set forth in Docket Number AR20050004546 on 14 October 2005.
	 
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 635-120 (Officer Resignations and Discharges) provided the procedures for officer resignations or discharges.  Chapter 4 provided the procedures for resignation in lieu of elimination.  It stated, in pertinent part, that an officer who had been recommended for elimination from service by a general court-martial convening authority could tender a resignation in lieu of elimination action.  Members separated under this provision of the regulation could receive either an HD or GD.

3.  Army Regulation 600-8-24 (Officer Transfers and Discharges) provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.  

   a.  Chapter 4, establishes policy and prescribes procedures for eliminating officers in the Active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security.  It states, in pertinent part, that an officer identified for elimination may at any time during or prior to the final action in the elimination case, elect to submit a resignation in lieu of elimination.

     b.  Paragraph 1-22b provides that an officer will normally receive a general under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer:
   
       (1)  Submits an unqualified resignation or a request for release from active duty under circumstances involving misconduct.
   
       (2)  Is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate.
   
       (3)  Is discharged for physical disability resulting from intentional misconduct or willful neglect, or which was incurred during a period of unauthorized absence.
   
       (4) Is discharged for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, unless a discharge under other than honorable conditions is appropriate.


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 (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)	 AR20170014197


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