ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 July 2019

	DOCKET NUMBER:  AR20170016778


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) 
* 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 he is requesting an upgrade to his discharge based on his belief that he was not provided with adequate representation during his trial in Germany.  

3.  The applicant provides a detailed self-authored statement which is attached describing the incident and his military and personal experiences.

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

	a.  He enlisted in the Regular Army on 29 August 1977.

	b.  He served overseas in Germany from 6 January 1978 until 30 January 1983.

	c.  He accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on/for:

* 27 January 1978, for behaving disrespectfully towards his commissioned officer and willfully disobeying a lawful order on 26 January 1978
* 16 June 1978, for wrongfully engaging in a fist fight in the dayroom with another Soldier

	d.  On 27 July 1980, he was arrested and detained by military authorities at the US Army Confinement Facility in Mannheim, pending the outcome of his civil case by foreign tribunal.  He was charged with abduction, sodomy and attempted rape of a German female. 

	e.  On 4 September 1980, he requested that he be retained in the service beyond    5 September 1980, the expiration date of his term of service, until final disposition of the charges against him by the foreign government and completion of administrative action to accomplish his separation from the Army.

	f.  On 24 April 1981, the applicant was convicted by foreign tribunal for sodomy, attempted rape and abducting a female against her will and was sentenced to 3 years and 9 months confinement.
	
	 g.  On 26 January 1982, the applicant's commander notified him of his intent to initiate action to effect his discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), chapter 14, for his civil conviction.

	h.  The applicant acknowledged receipt and consulted with counsel.  He requested to appear before a board of officers.  Following consultation with legal counsel, he understood his rights and acknowledged the following:

* he understood if this discharge 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 understood that he may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued
* 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

	i.  His immediate and intermediate commanders recommended approval of his chapter 14 discharge with the issuance of an under other than honorable conditions discharge.  

	j.  On 23 March 1982, the Chapter 14 Board concerning the applicant was conducted and the Board’s recommendation was consistent with the chain of commands recommendations.


	k.  Consistent with the chain of command's recommendation, the separation authority approved his discharge on 5 April 1982, under the provisions of AR 635-200, Chapter 14, section III, civil conviction, and directed the issuance of an under other than honorable conditions discharge.

	l.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 31 January 1983, under the provisions of AR 635-200, chapter 14, section III, and given a characterization of under other than honorable conditions discharge.  It also shows he had 2 years, 10 months and 25 days of active service with lost time from 27 July 1980 to 27 January 1983.  He was awarded or authorized the:

* Marksmanship Qualification Badge with Rifle Bar (M-16)
* .45 Caliber Pistol Bar
* Army Service Ribbon

5.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service.  After considering the evidence, the ADRB denied his request.
6.  By regulation, (AR 635-200), action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier, further effort is unlikely to succeed, or rehabilitation is impracticable or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record) and an unfit medical condition (AR 40-501) is not the direct or substantial contributing cause of his misconduct.

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 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 serious, criminal nature of the 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 (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 1-13a (Honorable) provides that an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated 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.

	b.  Paragraph 1-13b. (General) a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The recipient of a general discharge is normally a member whose military record and performance is satisfactory.  The member may have had frequent non-judicial punishments but not for serious infractions.  He may be a troublemaker, but his conduct is not so bad as to require a discharge for cause or a discharge under less than honorable conditions.  When a member’s service is characterized as general, except when discharged by reason of unsuitability, misconduct, or security, the specific basis for such separation will be included in the member’s military personnel record.

	c.  Chapter 14 (Misconduct) of this regulation establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct

	d.  Paragraph 14-2a of this regulation establishes that action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier, further effort is unlikely to succeed, or rehabilitation is impracticable or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record) and an unfit medical condition (AR 40-501) is not the direct or substantial contributing cause of his misconduct.

	e.  Paragraph 14, section III (Patterns of Misconduct) of this regulation prescribes that members are subject to separation per this section for the following:

* frequent incidents of discreditable nature with civil or military authorities
* an established pattern for shirking
* an established pattern for showing dishonorable failure to pay just debts
* an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgement of civil court concerning support of dependents

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)	 AR20170016778


4


1