ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  1 April 2019

	DOCKET NUMBER:  AR20170019831


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-written 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:  

     a.  He was in the Army 1 year, 11 months, and 1 day.  He entered the Army on                     12 October 1976 and was discharged on 12 September 1978.  He was 18 years old and it was the first time he was away from home.  He thought he knew it all.  He realized that his attitude was less than honorable and of course he now knows he did not comply with orders and caused the Army to ask him to leave with an under other than honorable conditions discharge.  

     b.  When he was asked to leave Army, the battery commander was off station and the executive officer (XO) asked him to leave.  He believes the battery commander would have stopped this discharge if he had been on base.  He was his personal driver and he was always trying to take him under his wing, and change his attitude.  He played basketball with the executive officer and it was widely known that they did not care for each other.  He feels because of the way he felt about him, that he [the XO] pushed the discharge against him and made sure that the applicant did not understand just how this would affect his life.  Being 18 years old at the time of his discharge he did not realize the impact this would have on his life.  He would never have done this if he had not been young and dumb.  He is asking that his discharge be changed to honorable so that he may be able to use a Veterans Affairs Medical Center.  

3.  The applicant’s discharge packet is not available for review with this case.  However, his record contains a duly-constituted DD Form 214 and supporting documents that show a history of misconduct, which resulted in the applicant being discharged from the Army.

4.  On 12 October 1976, the applicant enlisted in the Regular Army.  He completed training requirements and was awarded a military occupational specialty.        

5.  He received non-judicial punishment during the period of April 1977 to June 1978 on 5 separate occasions for:  

* failing to be at his appointed place of duty on 2 occasions
* stealing private property
* disobeying a lawful order from his superior noncommissioned officer on 2 occasions

6.  On 7 October 1977, the applicant’s commander recommended that he be barred from reenlisting in the Army.

7.  His record contains Army Discharge Review Board (ADRB) docket number                AD82-04717 that shows:

* a mental status evaluation was completed and determined the applicant had no significant mental illness
* a separation physical was accomplished
* the applicant was notified of his commander’s intent to recommend him for discharge, and the rights available to him
* the applicant was afforded the opportunity to consult with counsel, waived his rights, and declined to submit a statement in his own behalf
* the applicant’s commander recommended he be eliminated from the Army under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel)
* on 1 September 1978, the approval authority approved the applicant’s discharge under other than honorable conditions and waived rehabilitation transfer

8.  On 12 September 1978, the applicant was discharged accordingly.  He completed            1 year, 11 months, and 1 day of net active service.  He had no lost time and was not awarded a personal award.  

9.  In January 1983, the applicant personally appeared before the ADRB.  The ADRB determined his discharge was proper and equitable, and denied his request for an upgrade of his discharge.

10.  The applicant's contention that he was young and immature is out weighted by the fact that he had demonstrated the capacity for honorable service by completion of basic training and advanced individual training, advancement to pay grade E-2, and completion of approximately 6 months of service without a discreditable incident of record.  

11.  Army Regulation 15–185 (Army Board for Correction of Military Records (ABCMR)) states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.          

12.  Army Regulation 635-200, chapter 14 states that 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.   

13.  In reaching its determination, the Board should consider the applicant's petition, his service record, and his statement in light of the published Department of Defense guidance on equity, injustice, or clemency.                                     
 
BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record.  The applicant understands his actions were not that of all Soldiers.  The Board agreed the misconduct does not warrant an upgrade to an honorable discharge.  Based upon the recorded misconduct, the Board concluded to provide clemency with the recommendation of an under honorable conditions characterization.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 12 September 1978 showing his characterization of service as general, under honorable conditions.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his characterization of service to honorable.


	 
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.


ADMINISTRATIVE NOTE(S):  Not Applicable



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) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, 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.

	b.  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.  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.  Army Regulation 15-185 (ABCMR) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

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.
  
     a.  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.  
    
     b.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170019831
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