ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 June 2019

	DOCKET NUMBER:  AR20170017898


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-Authored Statement
* Letter of Support 
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* DD Form 1966 (Record of Military Processing – Armed Forces of the United States)
* DD Form 4057 (Contributory Educational Assistance Program Statement of Understanding)
* DA Form 2-1 (Personnel Qualification Record)
* DA Form 2627, Part II (Record of Proceedings Under Article 15, UCMJ)
* DA Form 2A (Personnel Qualification Record) I
* Military Occupational Specialty Orders, 38-64, P63B10
* Termination Order, 37-139, Parachute duty, dated 4 February 1987
* Army Good Conduct Order, 60-1, dated 15 April 1988
* DD Form 458 (Charge Sheet), dated 18 October 1988
* DA Form 2496 (Disposition Form) Court-Martial, dated 24 October 1988
* Separation Authority Approval, dated 17 November 1988
* Demotion Order, 218-33, dated 30 November 1988
* Reassignment Order to Transition Point, Ft. Bragg, dated 30 November 1988
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 that he was wrongfully accused of breaking into the battalion’s motor pool and stealing tools and despite the lack of evidence, he was charged with a crime.  Also, he was told he was unable to leave the Army at his expiration term of service and felt he was coerced into accepting the characterization of service of ‘other than honorable’ on his DD Form 214.  He is proud of his military service and accomplishments as a husband, father and business owner.

3.  The applicant provides:

	a.  A self-authored sworn statement, dated 23 October 2017, which explains the circumstances surrounding the charges against him for breaking into the battalion motor pool and stealing military property (see attached).

	b.  A sworn letter of support from X___, a lawyer, dated 19 October 2017, which states he assisted the applicant with obtaining his military records and his request to change the characterization of service (see attached).

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

	a.  He enlisted in the Regular Army (RA) on 27 August 1984.

	b.  On 21 February 1986, he accepted nonjudicial punishment for destruction of property.  He was reduced to the grade of E2, forfeiture of pay $167, 14 days extra duty, and 14 days restriction.

	c.  Court-martial charges were preferred on 18 October 1988.  His DD Form 458 (Charge Sheet) indicates he was charged with:

* one specification of unlawfully entering property of the United States Government
* one specification of larceny and wrongful appropriation of military property
* one specification of destruction of government property

	d.  He consulted with legal counsel on 31 October 1988, and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 
(Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge For the Good of the Service).  He acknowledged:

* he did not desire further rehabilitation or desire to perform further military service
* he was guilty of the charge 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

	e.  Consistent with the chain of command’s recommendation, on 17 November 1988, the separation authority approved the applicant’s request for separation under the provisions of chapter 10, AR 635-200, Chapter 10 (Discharge for the Good of the Service), in effect at the time.

	f. On 5 December 1988, he was discharged.  His DD Form 214 shows he was discharged with an under other than honorable conditions characterization of service.  He completed 4 years, 3 months, and 19 days of active service.  It also shows he was awarded or authorized the:

* Army Service Ribbon
* Parachute Badge
* Expert Qualification Badge with Hand Grenade
* Expert Qualification Badge with Rifle Bar
* Army Good Conduct Medal

5.  By regulation, a member who has committed an offense or offenses, which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  A discharge under other than honorable conditions normally is appropriate for a soldier 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 relief was not warranted.  Based upon the criminal nature of the misconduct, as well as a lack of character evidence to show that the applicant has learned and grown from the events leading to his discharge, 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 (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)	 AR20170017898


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