ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 July 2019

	DOCKET NUMBER:  AR20170016535


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge, to remove the narrative reason for separation and include the Sharpshooter Qualification Badge (Rifle Bar) on his DD Form 214 (Certificate of Release or Discharge From Active Duty).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-authored Statement

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 his characterization of service, narrative reason for separation and badges on his DD Form 214 are erroneous and unjust.

3.  The applicant provides a self-authored statement which states he went absent without leave due to constant harassment by leadership.  He adds he has struggled for 32 years because this type of discharge prevented him from excelling in certain workplace environments (see attached).

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

	a.  He enlisted in the Regular Army (RA) on 7 July 1983.

	b.  Court-martial charges were preferred against him on 26 July 1985.  His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave from 17 April 1985 to 21 July 1985.

	c.  He consulted with legal counsel on 26 July 1985, did not submit a statement on his own behalf and subsequently, requested discharge under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge For the Good of the Service).  He acknowledged: 

* he was guilty of the charges against him or of a lesser included offense which also authorizes the imposition of a bad conduct or dishonorable discharge
* if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate
* he may ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a Veteran under both Federal and State laws
* he can expect to encounter substantial prejudice in civilian life because of the Other Than Honorable Discharge

	d.  On 16 August 1985, the separation authority approved the applicant’s request and provided him with an Other Than Honorable Discharge Certificate under the provisions of chapter 10, AR 635-200, Chapter 10 (Discharge For the Good of the Service).

	e.  On 6 September 1985, he was discharged from active duty.  His DD Form 214 shows he was discharged with an under other than honorable conditions characterization of service, the narrative reason is listed as For the Good of the 
Service – In Lieu of Court-Martial under provisions of AR 635-200, Chapter 10 (Discharge For the Good of the Service).  He completed 1 year and 10 months and     27 days of active service with 95 days of lost time.  It also shows he was awarded or authorized the:

* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar
* Parachute Badge

5.  By regulation, an individual who have committed an offense or offenses, UCMJ 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 certificate is normally appropriate for a member who is discharged for the good of the service.

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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted.  Based upon the nature of the misconduct and the demonstrated growth shown by the applicant through submitted character evidence, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate.

However, the Board also concluded that there was insufficient documentary evidence to show that an error or injustice was present related to the weapon qualification and RE Code currently depicted on the applicant’s DD Form 214.    The Board found that the weapon qualification reflected on the DD Form 214 is accurate based upon information within the service record.  Additionally, the RE Code depicted on the DD Form 214 is appropriate based upon the facts and circumstances of the discharge.  Therefore, the Board recommended partial relief.

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 the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).
2.  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 the RE Code and the weapons qualification currently reflected on the applicant’s DD Form 214.
	 
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 (Personnel Separations – Enlisted Personnel), in effect at the time, provides 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 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.

	c.  Chapter 10 of this regulation provides procedures for separating soldiers who have committed an offense or offenses, UCMJ 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 certificate is normally appropriate for a member who is discharged 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 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.

ABCMR Record of Proceedings (cont)	 AR20170016535


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