ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  30 April 2019

	DOCKET NUMBER:  AR20170019062


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

SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the 
United States).

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 
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 wants to enlist in the military to serve his country and to make himself a better person.  The applicant admits he messed up in his past but states he has learned from his mistakes and is remorseful.  He has a son that is his inspiration to do better in life.  The applicant states he has been working for the U.S Army Human Resources Command (HRC) for two years and is trying to get into the Housing and Urban Development Veterans Affairs Supportive Housing (HUD-VASH) program.

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

	a.  He enlisted into the Regular Army on 6 February 2012.  He was assigned to Joint Base Elmendorf - Richardson, AK. 

	b.  On 1 March 2013, court-martial charges were preferred against the applicant for eight specifications of stealing currency from various Soldiers on divers occasions. 

	c.  On 4 March 2013, he consulted with legal counsel and was advised of his rights. Following consultation with counsel, he subsequently requested, in writing, discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  The applicant indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veterans benefits.

	e.  The applicant submitted a personal statement in support of receiving a chapter 10.  He expressed sorrow and regret for what he had done.  He admitted to being in a difficult place financially, being the only one employed, in his household.

	f.  On 6 March 2013, the Brigade Commander recommended approval of applicant’s voluntary request.

	g.  On 14 March 2013, the separation authority approved the applicant’s request for discharge in lieu of trial by court-martial.  He would be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate.

	h.  On 4 April 2013, he was discharged from active duty under the provisions of AR 635-200, chapter 10, with a characterization of service of under other than honorable conditions.  He completed 1 year, 1 month, and 20 days of active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon
* item 24 (Character of Service), Under Other Than Honorable Conditions
* item 28 (Narrative Reason for Separation), in Lieu of Trial by Court-Martial
* item 29 (Dates of Time Lost During This Period), None

4.  By regulation, discharges under the provision of AR 635-200, chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court-martial.  An under other than honorable conditions discharge is appropriate for this type of discharge.

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 liberation consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the multiple UCMJ violations against fellow Soldiers and the relatively short term of service, the Board concluded that characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommended denying the applicant’s request for relief.

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, U.S. Code, 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 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 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the regulation in effect at the time (and the version currently in effect) provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a of the regulation currently in effect provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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.

	c.  Paragraph 3-7b of the regulation currently in effect provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

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)	 AR20170019062


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