ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    6 May 2019

	DOCKET NUMBER:  AR20170019302


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).

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 his discharge was unfair, unjust, and he was not discharged for misconduct.  He had personal civilian circumstances.  His cousin was killed while they were home on leave after advanced individual training.  They were both 17 years old and this affected his military life.  He went on to be a commercial operator driver for over a year and he was a quality Soldier.  He now has a college degree and is an upstanding citizen.  He believes he deserves benefits for his 2 years of infantry service and he wants to be awarded Department of Veterans Affairs benefits for his 2 years of military service.

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

	a.  He enlisted in the Regular Army on 4 March 1976.

	b.  He received nonjudicial punishment on/for:

* 14 May 1976, being absent without leave (AWOL) from 9 to 13 May 1976
* 25 May 1976, stealing property
* 22 September 1976, being AWOL from 7 September to 15 September 1976; he was reduced to E-1 but the reduction was suspended for 60 days
* 12 January 1977, being derelict in the performance of his duties; he was reduced to E-1
* 9 August 1977, being AWOL from 3 to 7 January 1977
* 8 November 1977, violating a lawful order (two violations)

	c.  On 17 October 1977, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for misconduct.  

	d.  The applicant acknowledged receipt on the same date:

* consult and be represented by legal counsel
* present case before a board of officers
* submit statements on his behalf
* withdraw waiver of his rights at any time prior to the date the discharge authority directs or approves his discharge and request his case be presented to a Board of officers

	e.  On 3 November 1977, the unit commander recommended separation under the provisions of chapter 13, AR 635-200 by reason of misconduct.

	f.  On 17 October 1977 the intermediate commander concurred with the unit commander and forwarded the recommendation to discharge under the provisions of chapter 13 for misconduct.  The applicant requested a board on 5 December 1977.

	g.  On 29 December 1977, the separation approval authority ordered a board of officers be convened to determine whether the applicant should be separated for misconduct.

	h.  On 24 January 1978, the applicant consulted with legal counsel.  He waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and elected not to submit statements on his own behalf.  He acknowledged:

* he had been advised of the basis for the contemplated action under the provisions of chapter 13, AR 635-200
* he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* as a result of a discharge certificate of under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws
* he may, up until the date of the discharge authority directs or approves his discharge, withdraw his waiver and request a board of officers hear his case

	i.  On 6 February 1978, the separation authority approved the applicant’s discharge under the provisions of chapter 13, AR 635-200 and directed that his service be characterized as under other than honorable conditions.

	j.  On 22 February 1978, the applicant was discharged from the Army.  His 
DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions of chapter 13, AR 635-200.  He completed 1 year, 10 months, and 29 days of active service with 16 days lost.  It also shows he was awarded or authorized:

* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar

4.  By regulation (AR 635-200), separation for unfitness included misconduct such as frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

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 short term of service completed prior to multiple UCMJ violations, some of a seriousness nature, the Board concluded that the 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, 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, set forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Paragraph 1-13a (Honorable Discharge) states 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 Discharge) states 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 nonjudicial punishments but not for serious infractions.  He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions.

	c.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 

	d.  Chapter 14 (effective 1 March 1978) establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  
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 on the basis of 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)	 AR20170019302


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