ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 July 2019

	DOCKET NUMBER:  AR20170014791


APPLICANT REQUESTS:  a reconsideration of 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)
* DD Form 214 (Report of Separation from Active Duty
* Department of Veterans Affairs (VA) Information Reports

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 AR20100014602 on 1 December 2010.

2.  The applicant states his discharge status is inaccurate with the VA computer system.  His discharge appears as dishonorable and should reflect on his DD Form 214 to say under other than honorable conditions.  His veteran’s benefits administration stated his discharge was labeled as dishonorable within their system.

3.   The applicant provides: 

* DD Form 214 that shows he was released from active duty on 12 December 1978
* VA information sheets with the applicant’s under other honorable discharge highlighted, his personal information, and period of active service

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

a.  He enlisted in the Regular Army on 8 July 1977.

b.  He received nonjudical punishment under Article 15 on/for:

* 16 March 1978, failure to go to his appointed place of duty on 7 March 1978 and 9 March 1978, he was reduced to private E-1
* 4 May 1978, failure to go to his appointed place of duty on 1 May 1978 and 2 May 1978
* 17 May 1978, absent without leave (AWOL), from 5 May 1978 to 12 May 1978
* 27 June 1978, failure to go to his appointed place of duty on 6 June 1978 and 8 June 1978 on 7 August 1978
* 7 August 1978, AWOL from 16 July 1978 to 20 July 1978

   c.  On 12 October 1978, court-martial charges were preferred against the applicant.  His DD Form 458 (Charge Sheet) indicates he was charged with:

* striking Staff Sergeant X his superior noncommissioned officer by hitting him on the left side of the face with his fist
* disobeying a lawful order issued by Staff Sergeant AR to wait in the dayroom until Second Lieutenant X arrived
* disobeying a lawful order issued by Staff Sergeant AR to turn his stereo down 

   d.  On 1 November 1978, he consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation, 635-200, (Personnel Separations – Enlisted Personnel) chapter 10.  In his request he acknowledged:  
   
* maximum punishment 
* he was guilty of the charge against him of a lesser included offense 
* he did not desire further rehabilitation or a desire to perform further military service 
* he understood if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an Under Other Than Honorable Discharge Certificate 
* if an under other than honorable conditions discharge was issued, he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the Veterans Administration and benefits of a Veteran under Federal and State law

	e.  On 1 November 1978, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge.  He would be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate.  

	f	On 12 December 1978, he was discharged from active duty.  His DD 214 shows he was discharged in accordance with chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service.  It also show he completed 1 year, 4 months, and 22 days of active service, with 13 days lost and he was awarded or authorized: Sharpshooter Marksmanship Qualification Badge with Rifle Bar 

5.  On 1 December 2010, the Board considered his petition for an upgrade of his discharge but found no evidence of an error or an injustice.  The Board denied his request.

6.  By regulation, AR 635-200 a member who has committed an offense or offenses, the punishment for any of which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An under other than honorable discharge is normally appropriate for a member who is discharged for the good of the service.

7.  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 short term of honorable service completed prior to a pattern of misconduct, which included violence towards othres, 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.  Finally, The VA is its own Federal agency, and the Board does not have authority to affect VA character of service determinations to provide benefits.

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 AR20100014602 on 1 December 2010.
	 
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, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) states 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 discharge) states 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.

	c.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses, the punishment for any which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An under other than honorable discharge is normally appropriate for a member who is discharged for the good of the service.  However, the discharge authority may direct an honorable or general discharge, if such are merited by the member’s overall record during the current enlistment.

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)	 AR20170014791


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