ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 July 2019

	DOCKET NUMBER:  AR20180001934


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 made a mistake on the last day of his active duty service.  His expiration term of service was 18 June 1982.  He went to the orderly room to sign out and was told to have a seat.  The military police was called, they checked him and found $10 worth of hashish that he had bought for the ride home.  He earned a Good Conduct Medal (GCM) and was a really good Soldier but he had purchased a little hash on his last day of active duty.  He was held for 6 days in the stockade until his first sergeant returned from leave.  He was out processed and they took his GCM and gave him an other than honorable discharge.  He gave the Army 2 years and 364 good days.

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

	a.  He enlisted in the Regular Army on 19 June 1979.  

	b.  He served in Korea from 7 January 1980 to 6 January 1981.  He also served at Fort Campbell, KY from 26 January – 23 July 1981.  He was assigned to Bravo Company, 159th Aviation Battalion.

	c.  The complete facts and circumstances surrounding his discharge are not available for review with this case, however, his service record contains:
	(1)  His DA Form 4187 (Personnel Action) reflects his duty status changed from 18-24 June 1982 as confined to military authorities.  On DA Form 4187 states "service member was detained in detention facility to determine charges against him.  Bad time will be determined at court-martial." 

	(2)  Court-Martial Convening Order Number 123, dated 1 July 1982, Brigadier General X___ directed a special court martial.

	(3)  On 14 July 1982, a mental status evaluation was conducted.  The examiners determined he had the mental capacity to understand and participate in proceedings, and was mentally responsible.  He was psychiatrically cleared for any judicial/administrative proceedings deemed appropriate by his command.

	(4)  His DD Form 2-1 (Personnel Qualification Record), reflects he was reduced from specialist to private E-1 on 22 July 1982.

		(5)  DD Form 214 that shows he was discharged from active duty on 23 July 1982 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (in lieu of trial by court-martial).  He completed 2 years, 11 months, and 29 days of active service and he had lost time from 18 to 23 June 1982..  His DD Form 214 shows he was awarded or authorized:

* Army Service Ribbon 
* Overseas Service Ribbon
* Aircraft Crewman Badge 

4.  By regulation (AR 635-200), a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  The issuance of a discharge under the provisions of chapter 10, AR 635-200, would have required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of a trial by court-martial.

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 warranted.  Based upon the nature of the misconduct which led to the applicant’s separation and the mitigating reasons given by the applicant within his application, the Board concluded that recommending an upgrade in the characterization of service to Under Honorable Conditions (General) was appropriate.
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for 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 showing his characterization of service as Under Honorable Conditions (General).
	 
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, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-13a states that 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 states that 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.

	c.  Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service.  An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the service.  However, the discharge authority may direct an honorable or general discharge if such are merited by the member’s overall record during the current enlistment.

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)	AR20180001934


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