ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  28 June 2019

	DOCKET NUMBER:  AR20170015711


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Character Reference Letter

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 had served his county honorably.  However, he could not get along with the sergeant, who treated him and other comrades extremely unfair in character, hitting and abusive language and was not complying with military standards.  He tried to get help with the sergeant, as a result of not receiving assistance he left the situation to his brothers to address and he properly left the military.  Since leaving the military he has been a positive person.  

3.  The applicant provides a character reference letter from RH who states that he has known the applicant for 20 great years.  The applicant is extremely honest, dependable, and would help anyone in need for support.  The applicant had lived in Michigan for at least 25 years and because of his health had moved to Marshfield, MO.  RH has been to the applicant’s home in MO and he maintains a clean house throughout.  The applicant had several small opportunities such as a home and lawn service for 5 years or more and a trucking company from 1988 to 2008 as an over the road semi-truck driver.  He currently holds a MO driver license, U.S. Passport, Twic Card which allows him to drive the semi on any federal, state, or local properties.  While the applicant was living in St. Clair County, he received a full pardon from the governor.  This type of pardon is extremely rare for anyone to receive a full pardon from the governor.

4.  The applicant’s service records shows:

	a.  He enlisted in the Regular Army on 28 May 1976.  

	b.  The complete facts and circumstances surrounding the retention proceedings under the provisions of section VI, Army Regulation (AR) 635-206 (Personnel Separations – Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion) are not available for the Board to review. 

   c.  On 20 January 1977, the applicant’s unit commander recommended that he be retained in the service under provisions of section VI, AR 635-206.

	d.  He was notified of a possible discharge from the U.S. Army under provisions of section VI, AR 635-206 because of civil arrest.

	e.  After consultation with legal counsel on 25 January 1977, he acknowledged the notification of the proposed separation because of civil arrest.  He acknowledged:

* he had been advised by counsel of the basis for the contemplated action of separation
* he requested consideration of his case before a board of officers
* he did not submit statements in his own behalf
* he requested representation by his appointed counsel
* he could be issued an under other than honorable conditions discharge
* he may be ineligible for many or all benefits as a veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life

   f.  The separation authority approved the applicant's retention for continued service on 2 February 1977.  He directed coordination with the civilian court to determine the applicant’s restitution to expedite the disposition of the case.

   g.  On 7 August 1978, the applicant’s immediate commander requested that rehabilitation measure be waived.

   h.  Court-martial charges were preferred against his on 11 September 1978.  His DD Form 458 (Charge Sheet) indicated he was charged with two specifications of without authority, absent himself from his unit.  The disposition of these court-martial charges is unknown and is not available for review. 

   i.  the chain of command recommended him for discharge due to misconduct.  The commander's notification memorandum is not available for review.  

   j.  He consulted with counsel on 18 December 1978.  He acknowledged notification of separation under the provisions of chapter 14 (Separation for Misconduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations).  He acknowledged:

* he was advised by counsel of the basis of the contemplated separation action
* he waived consideration by a board of officers and personal appearance before a board of officers
* he did not submit statements in his own behalf
* he waived representation by counsel
* his willful absenting himself before the board of officers waives his right to personal appearance before the board
* he may expect to encounter substantial prejudice in civilian life
* he may be ineligible for many or all benefits as a veteran under both Federal and State laws

   j.  His unit commander initiated discharge proceedings under the provisions for AR 635-200 for misconduct due to conviction by a civil court.

   k.  Consistent with the chain of command recommendations, the separation authority approved the separation under the provisions of AR 635-200 for misconduct and an under other than honorable conditions discharge certificate be furnished to the applicant.

   l.  On 20 February 1979, he was discharged from active duty under the provisions of chapter 14, section III, AR 635-200.  His DD Form 214 shows he completed 1 year, 1 month, and 8 days of active service with 612 lost days.

5.  By regulation AR 635-200 (Personnel Separations – Enlisted Separations), established policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court or adjudged juvenile offenders, desertion and absence without leave, and other acts or patterns of misconduct.  An individual will be considered for discharge and his case initiated and processed through the chain of command to the general court-martial convening authority when it is determined that one or more of the following apply: (a) conviction by civil court, (b) conviction of offense involving moral turpitude, (c) Adjudication as juvenile offender.

6.  In reaching is 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the short term of honorable service completed prior to the serious, criminal misconduct which led to the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge was appropriate.

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.  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 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge is predicated upon proper military behavior and proficient 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 not derogatory information in his military records, he should be furnished an honorable discharge certificate.

	b.  Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable condition.  It is issued to a member whose military records is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The recipient of a general discharge is normally a member whose military records and performance is satisfactory.

	c.  Chapter 14 established policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court or adjudged juvenile offenders, desertion and absence without leave, and other acts or patterns of misconduct.  An individual will be considered for discharge and his case initiated and processed through the chain of command to the general court-martial convening authority when it is determined that one or more of the following apply: (a) conviction by civil court, (b) conviction of offense involving moral turpitude, (c) Adjudication as juvenile offender.  An under other than honorable conditions certificate is normally appropriate for a member discharged for conviction by civil court.  However, discharge authority may direct an honorable or general discharge if such are merited by the member’s overall record.

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.

ABCMR Record of Proceedings (cont)	 AR20170015711


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