ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 August 2019

	DOCKET NUMBER:  AR20180002639


APPLICANT REQUESTS: 

* upgrade his bad conduct discharge to a general, under honorable conditions discharge
* provide copy of National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) from California Army National Guard (CAARNG)
* personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge or Dismissal)


FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2000036206 on 7 June 2000.

2.  The applicant states that he has been unable to find employment and needs a copy of his discharge paperwork for employment applications.  He received a Special Court-Martial while on active duty and needs to get the characterization of the discharge upgraded to a general under honorable conditions.  He enlisted in the CAARNG but did not receive separation documents from the ARNG and requests a copy of his 
NGB Form 22 from the CAARNG.  He has been unable to use the Veteran Administration (VA) hospital and he does not understand the reason for this determination.  He had worked in the textile care facility at the VA in Los Angeles, CA.  If he had a bad conduct discharge how could he be employed by the VA.  He also lived at the VA in CA and Jessie Brown in Chicago, IL.  He requests to upgrade his discharge.



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

	a.  He enlisted in the CAARNG on 21 February 1974.

	b.  Order 037-301 dated 22 February 1979, ordered the applicant to involuntary active duty effective 9 April 1979 to report to Fort Bliss, TX with a follow on assignment to Fort Carson, CO based on the determination of the CAARNG that he was a unsatisfactory participant in accordance with Army Regulation 135-91 (Service Obligation, Methods of Fulfilment, Participation Requirements, and Enforcement Procedures).

	c.  Special Court-Martial Order Number (SCMO) 43 dated 21 May 1980, shows the applicant was found guilty of one specification of violation of a lawful general regulation by which he had in his possession an unregistered handgun and three specifications of theft.  His sentence included reduction to the lowest enlisted grade of 
private (PVT) /E-1, forfeiture of $298 per month for 6 months, and confinement at hard labor of 6 months and discharged from the U.S. Army with a bad conduct discharge.  The sentence was adjudged on 29 February 1980.  The sentence was approved on 
9 May 1980 and was forwarded to the Judge Advocate General for appellate review.  The applicant was confined pending the completion of the review.

	d.  SCMO 150 dated 19 June 1980, the unexecuted portion of the sentence to the bad conduct discharge; the unapplied forfeiture of $298 per month for 6 months, confinement at hard labor for 6 months was suspended for 6 months unless the suspension was sooner vacated.

	e.  He accepted nonjudicial punishment on 3 July 1980 for drunk and disorderly while in uniform and without proper authority willfully damaged property.

	f.  On 7 July 1980, the suspension of punishment of forfeiture $200 per month for 
2 months, 20 days extra duty and restriction that was imposed upon the applicant was vacated.  The unexecuted portion of the punishment was duly executed.

	g.  SCMO 424 dated 14 August 1980, the suspension of the unexecuted portion of the approved sentence on the applicant to a bad conduct discharge was vacated.  The sentence to confinement at hard labor had been served.

	h.  On 3 September 1980, the U.S. Army Court of Military Review completed the appellate review and found the approved findings of guilty and sentence to be correct in law and fact, such findings of guilty and the sentence was affirmed.

	i.  SCMO 140 dated 20 February 1981, complied with the SCMO 424 and the sentence to the bad conduct discharge was duly executed.  The confinement at hard labor was served.

	j.  He was discharged from active duty on 20 February 1981 with a bad conduct characterization of service under the provisions of chapter 11 (Dishonorable and Bad Conduct Discharge), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  The applicant was reduced to PVT/E-1.  His DD Form 214 shows that he completed 1 year and 2 months of active service with 146 lost days.

4.  The applicant applied for relief to the Army Board for Corrections of Military Records and was notified on 26 April 2016 that his application for an upgrade of his discharge was denied.  

5.  By regulation 635-200 (Personnel Separations – Enlisted Personnel), states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed.

6.  By regulation 135-91 (Service Obligation, Methods of Fulfilment, Participation Requirements, and Enforcement Procedures), states members serving on active duty because of unsatisfactory unit participation will be processed in accordance with Army regulations governing active component members.

7.  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 it could reach a fair and equitable decision in the case without a personal appearance by the applicant.

Additionally, the Board determined that relief was not warranted.  Based upon the pattern of misconduct, including some involving criminal behavior, the Board concluded that the characterization of service received at the time of discharge was appropriate.  The Board also found that if the applicant wishes to receive a copy of NGB Form 22, he should contact the CAARNG representative to obtain a copy of that document.


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.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel:

	a.  Paragraph 1-13a (Honorable Discharge) 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 of the member’s age, length of service, grade and general aptitude.  Where a member has served faithfully and performed to the best of his ability and there is not derogatory information in his military records, he should be furnished an honorable discharge certificate.

	b.  Paragraph 1-13b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military records is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The recipient of a general discharge is normally a member whose military records and performance is satisfactory.  The member may have had frequent nonjudicial punishments but not for serious infractions.  

	c.  Paragraph 1-13c (Under Other Than Honorable Conditions) states that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, for homosexuality, for security reasons, or for the good of the service issuance of an under other than honorable conditions discharge.

	d.  Chapter 11 (Dishonorable and Bad Conduct Discharge), of that regulation states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed.

2.  Army Regulation 135-91 (Service Obligation, Methods of Fulfilment, Participation Requirements, and Enforcement Procedures), in effect at the time, states members serving on active duty because of unsatisfactory unit participation will be processed in accordance with Army regulations governing active component members.  Unless earlier discharged for other authorized reasons, these members will be released when active duty is completed and transferred as follows:

	a.  Those who have completed less than a total of 5 years of ready reserve and active federal service will be transferred to the United States Army Reserve (USAR) Control Group (Annual Training)

	b.  Those who have completed a total of 5 years but less than 6 years of ready reserve and active federal service will be transferred to the USAR control Group (Reinforcement).

3.  National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), states that a National Guard Bureau (NGB) Form 22 will be prepared for every soldier being separated from the ARNG or release from the custody and control of the military, unless the Soldier is being discharged for the purpose of immediate reenlistment, executes an interstate transfer or the Soldier dies.

4.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any record of the Secretary’s Department when the Secretary considers it necessary to correct an error or remove an injustice.  With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary’s Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency.  Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of the Military Department.

5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Corrections of Military/Naval Records regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

ABCMR Record of Proceedings (cont)	 AR20180002639


4


1