ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  12 June 2019

	DOCKET NUMBER:  AR20170018224


APPLICANT REQUESTS: 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

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 50 years old and his life is just now beginning.  He had drug problems and mental health issues.  He’s been clean for 6 months and still trying to get his life on track.  When he joined the Army in 1976, his mom had to sign for him and he was so proud of himself.  He wanted to be like his big brother who joined in 1972 and was very successful.  He was very young and now needs another chance at life.  He asked to please upgrade his discharge, he would be so grateful.

3.  A review of the applicant record shows:

a. He enlisted in the Regular Army 18 October 1976.

b. He accepted nonjudicial punishment under Article 15 on/for:

* 18 June 1977, disobeying an lawful order
* 14 June 1978, disobeying a lawful order
* 10 September 1978, failing to remain alert as it was his duty to do 
* 20 October 1978, failing to go at the time prescribed to his appointed place of duty

	c.  On 23 March 1978, he was convicted by a special court-martial of one specification for stealing.  The court sentenced him, in effect, to reduction to private/E-1 and confinement at hard labor for four months.  The convening authority approved the sentence on 23 January 1978. 

 	d.  On 7 December 1978, the applicants immediate commander notified the applicant of his intent to initiate action to separate him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter    14-33, for misconduct (Frequent incidents of a discreditable nature with civil or military authorities) because of civilian conviction.  The commander advised the applicant of his rights to:  

* Consult with counsel at the Office of the Staff Judge Advocate (appointment was made for 8 December 1978) 
* Have his case considered by a board of officers
* Appear before a board of officers 
* Submit statements in his own behalf
* Be represented by counsel
* Waive any of these rights and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge
* Request his case be presented before a board of officers.

	e.  The applicant’s acknowledgement and rights statement is not available for review with this case. 

	f.  The applicant's immediate commander initiated action to separate the applicant for misconduct, under the provisions of AR 635-200, chapter 14.  The commander indicated that the reasons for the proposed action was the applicant’s civilian conviction.  He stated:

* the applicant was a rehabilitative transfer from the retraining Brigade 
* since being here, he has been arrested and convicted by civil court on two separate and unrelated offenses (auto theft for which he got five years and probation), and trespassing (for which he got a fine) 
* he has also received several Article 15s and counseling
* he had no desire to work and will not work unless constantly supervised

	g.  The applicant's battalion commander recommended his discharge for misconduct under chapter 14 of AR 635-200. 

	h.  On 12 March 1979, the separation authority approved the applicant’s discharge under the provisions of, AR 635-200, chapter 14-33.  He further ordered the applicant's service be characterized as under other than honorable conditions.

	i.  The applicant was discharged from active duty on 24 April 1979.  His DD Form 214 shows he was discharged under the provisions of AR 635-200, Chapter 14-33, due to misconduct and he received a characterization of service of under other than honorable conditions and a separation code of JKB.  He completed 2 years, 2 months, and 28 days of active service.  He had 99 lost days.  He was awarded the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars 

4.  By regulation AR 635-200, (Active Duty Enlisted Administrative Separations) 
chapter 14, 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.

5.  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 pattern of misconduct and some misconduct being of a criminal nature, the Board concluded that the characterization of service received at the time of separation 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, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) states 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 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 14 -33b of that regulation provides that members are subject to separation for frequent incidents of discreditable nature with civil or military authorities, an established pattern for shirking, showing dishonorable failure to pay just debts, 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.  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)	 AR20170018224


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