ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 July 2019

	DOCKET NUMBER: AR20170018109

APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge to honorable and to appear before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 149 (Application for Correction of Military Record)

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 felt he did not have the proper representation at the time of discharge.  His brother died after he joined the Army and he returned from that experience depressed.  He was only 19 years old and says should have sought counseling.

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

	a.  He enlisted in the Regular Army on 27 January 1978.

	b.  His records show he accepted nonjudicial punishment under Article 15 on multiple occasions: 

* 3 November 1978, for using disrespectful language to a noncommissioned officer; his punishment consisted of forfeiture of pay and extra duty 
* 9 November 1978, for drunk and disorderly conduct, assault, and communicating a threat; his punishment consisted of forfeiture of pay and extra duty
* 4 September 1979, for leaving his place of duty and possession of marijuana; his punishment consisted of forfeiture of pay, restriction, and extra duty 
* 20 January 1979, for entering into a physical altercation and communicating a threat; his punishment consisted of forfeiture of pay and reduction to E-1 

	c.  On 5 November 1979, the applicant's immediate commander notified him that a discharge action was being initiated against him for misconduct, specifically for frequent incidents of discreditable nature with military authorities in contravention to chapter 14 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  

	d.  On 5 November 1979, after consulting with legal counsel, he acknowledged:

* the rights available to him and the effect of waiving said rights
* he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him
* he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading
* he is ineligible to apply for enlistment in the Army for 2 years after discharge

	e.  His commander initiated separation action against him under chapter 15 of AR 7635-200 and his chain of command recommended approval. 

	f.  On 12 December 1979, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 14.  He would be issued an Under Other Than Honorable Conditions Discharge Certificate. 

	g.  On 14 January 1980, he was discharged from active duty under the provisions of AR 635-200, Chapter 14.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received a characterization of service of under conditions other than honorable.  He completed 1 year, 11 months, and 4 days of active service.  It also shows he was awarded or authorized the Marksmanship Qualification Badge with Rifle Bar.

4.  By regulation, Soldiers are subject to separation for a patterns of misconduct when frequent incidents of discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, or an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents.

5.  By regulation, applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

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 it could reach a fair and equitable decision without a personal appearance by the applicant.

Additionally, the Board concluded that based upon the misconduct involved in the separation including violent behavior towards others, 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, sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).   

	b.  Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  When a member’s service is characterized as general, except when discharged because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record.  

	c.  Chapter 14-33b (1) states Soldiers are subject to separation for a patterns of misconduct when frequent incidents of discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, or an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents.

3.  AR 15-185 (ABMCR) states ABCMR members will review all applications that are properly before them to determine the existence of an error.  The ABMCR will decide cases on the evidence of record.  It is an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABMCR may grant a formal hearing whenever justice requires.  

4.  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)	 AR20170018109


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