ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 July 2019

	DOCKET NUMBER:  AR20180002288


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

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 he was addicted to drugs while he was in Korea and was discharged without treatment with an other than honorable and he would like that changed to an honorable.  He was discharged without any treatment or offer of treatment, which in turn set him up to be addicted for many years.  He has now been clean and sober for 22 years and would like his status changed.

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

	a.  He enlisted in the Regular Army on 31 August 1971.

	b.  He served overseas in Korea from 23 January 1972 to 29 July 1972.

	c.  On 6 April 1972, he accepted non-judicial punishment (NJP) for departing his unit in an absent without leave (AWOL) status from 25 August 1971 until 2 April 1972.  His punishment included reduction to Private E-2, a forfeiture of $65.00, 10 days extra duty and 10 days of restriction.

	d.  On 2 May 1972, he accepted NJP for failing to be at his appointed place of duty on 29 April 1972 and disobeying an order on 30 April 1972.  His punishment included forfeiture of $100.00 per month for 2 months, restriction to Battery area for 30 day, 15 days of extra duty to run concurrently.  
	e.  Court-martial charges were preferred against the applicant on 1 July 1972.   
His DA Form (Charge Sheet) shows he was charged with:

* one specification of disrespecting a commissioned officer 
* one specification of disrespect to a senior noncommissioned officer
* once specification of intoxication and failing to be in proper condition
* once specification of incapacitation for the proper performance of his duties

	f.  On 1 July 1972, following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

	g.  His service record is void of the final approval authority documentation.  However, his record contains the separation order discharging him under the provisions of AR 635-200, Chapter 10 and directed the issuance of an undesirable discharge certificate, he was also reduced to the lowest enlisted grade of Private/E-1.  

	h.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 29 July 1972, for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions.  It also shows he completed 10 months and 29 days of active service.  His record also shows he was awarded or authorized the:

* National Defense Service Medal
* Armed Forces Expeditionary Medal

4.  By regulation, an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

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 review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the short term of honorable service completed prior to a pattern of misconduct, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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, sets forth the basic authority for the separation of enlisted personnel.  
	a.  Paragraph 3-7a (Honorable) provides that 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) provides that 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.  A characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization.  It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty.

	c.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses, the punishment for which, under the UCMJ and the MCM, 1969 (Rev), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  The provisions of the Table of Maximum Punishments, section B, paragraph 127c, MCM 1969 (Rev) do not apply
to requests for discharge per this chapter unless the case has been referred to a court-martial authorized to adjudge a punitive discharge.  The discharge request may be submitted after court-martial charges are preferred against the member, or, where required, after referral, until final action on the case by the court-martial convening authority.

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180002288


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