ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
	BOARD DATE:  20 June 2019

	DOCKET NUMBER:  AR20180002997


APPLICANT REQUESTS: 

* an upgrade of his under other than honorable conditions discharge 
* change of narrative reason for separation

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States) 
* DA Form 149 (Application for Correction of Military Record)
* VA Form 21-4142 (Authorization to Disclose Information to the Department of Veteran Affairs)
* VA Form 21 (Notice of Disagreement x2)

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 that his superior officer was sleeping with wife and he decided at court –martial to accept a dishonorable.  He states that he cannot get records of his court hearing on that are on file.

3.  The applicant provides copies of forms from the Department of Veterans Affairs (DVA) in support of his claim.  He provides DVA Form 21-4142, that authorizes his representative to act on the claimant’s behalf (in support of his claim).  He also provides DVA form 21-0958 (Notice of Disagreement).  Neither form has any bearing on his claim with us and are used for DVA’s purpose.   

4.  A review of the applicant’s service records show:

	a.  He enlisted into the Regular Army on 8 November 1984.
	b.  He accepted nonjudicial punishment on/for:

* on or about 21 January 1985, failure to obey a lawful order from a Commissioned Officer, his punishment included forfeiture of $160 and 7 days in the correctional custody facility (CCF) deferred
* on or about 22 May 1985, failure to be at his appointed place of duty and time, his punishment included reduction to the Grade of E-1 (Private), forfeiture of $144  and (CCF) for 7 days deferred
* on or about 29 July 1985, wrongfully use provoking words towards another service member, his punishment included 14 days of extra duty and forfeiture of $144 (suspended for 3 months)
* on or about 30 August 1985 break restriction, his punishment included $144 

	c.  He consulted with legal counsel on 30 July 1986.  Counsel advised him of the contemplated trial by a court-martial and of his rights.  The applicant subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  He acknowledged:

* maximum punishment
* he was guilty of the charges against him or of a lesser included offense
* he did not desire further rehabilitation or further military service
* if his request for discharge was accepted, he may be discharged under other than honorable conditions 
* as a result of the issuance of an under other than honorable conditions discharge, he would be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administered by the Veterans Administration
* he may be deprived of his rights and benefits as a veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement in his own behalf

	d.  Consistent with the chain of command recommendations on 13 July 1986, the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade.

	e.  On 11 August 1986, he was discharged from active duty under the provisions of 
AR 635-200, chapter 10 with an under other than honorable conditions discharge characterization of service.  His DD Form 214 shows he completed 2 years, 3 months, and 18 days of active service with 88 days lost.  It also shows he was awarded or authorized the following:

* Sharpshooter Marksmanship Qualification Badge with Riffle Bar (M-16)
* Hand Grenade (First Class) Qualification Badge

5.  By regulation, a member who has committed an offense or offenses, the punishment for which, 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.

6.  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 there is insufficient evidence to grant relief.  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 service completed prior to a pattern of misconduct, the Board agreed that the applicant's reason for separation and discharge characterization were 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 (AR) 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 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, grade, and general aptitude. 

	b.  Paragraph 3-7b (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.

	c.  Chapter 10 of that regulation states a member who has committed an offense or offenses, the punishment for which, 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.

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards of Correction 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.  The 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, BCMRs shall consider the twelve states 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180002997


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