ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	BOARD DATE:  6 September 2019

	DOCKET NUMBER:  AR20180003034


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* self-authored 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, in effect, he was not able to defend himself and he was not counseled, being that he was 24 years old.

3.  The applicant provides a self-authored statement, which states:

a.  He would like his discharge from the Army in August 1990 to be changed to 
honorable.  He was told in 2 years that his discharge would change to an honorable.  His grandpa on his mother’s side fought in WWI and his grandpa on his father’s side fought in WWII, Korea, and Vietnam.  He asks the Board to please let him have his honor back.  He only got into trouble because of his friend.  He had never been in trouble before then nor has he since military life.  He was just in the wrong place at the wrong time.

b.  He begs the Board to restore his honorable discharge.  He loves everything the 
military stands for, and he asks the Board to find it in their hearts to restore his honorable discharge.  When the other Soldiers got in trouble, he went absent without leave (AWOL) and that is when he was given an early out.  He was not offered or considered to appear before a board or counsel.

c.  He believes this to be unjust, because he went to court to testify; however, the 
other person went AWOL and never showed up for court.  He asks the Board to take this into consideration when considering upgrading his discharge, because he was not guilty and had done nothing wrong.  

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

	a.  He enlisted in the Regular Army on 21 May 1987.

b. DD Form 458 (Charge Sheet), dated 27 June 1990, court-martial charges 
were preferred against him for one specification of, on or about 3 May 1990, wrongfully distributing approximately 2.519 grams of cocaine.

	c.  On 16 July 1990, he consulted with legal counsel who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishments authorized under the Uniform Code of Military Justice, the significance of his suspended sentence to a bad conduct dishonorable or dishonorable discharge; the possible effects of an under other than honorable discharge if this request was approved; and the procedures and rights available to him.  Following consultation, he requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10.  In his request, he acknowledged:

* he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct discharge or dishonorable discharge
* he did not desire further rehabilitation or to perform further military service
* if his discharge was approved, he could be discharged under other than honorable conditions
* he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State law
* he might encounter substantial prejudice in civilian life because of a under than honorable discharge 

	d.  Consistent with the chain of command's recommendations, on 19 July 1990, the separation authority approved the applicant’s discharge request for the good of the service and directed that he be issued an under other than honorable conditions discharge and reduced to the lowest enlisted grade of private/E-1.

	e.  On 31 August 1990, he was discharged in accordance with AR 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial, with an under other than honorable conditions character of service.  He completed 3 years, 3 months and 1 day of net active service.  

5.  There is no evidence the applicant applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

6.  By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

7.  The Board should 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 Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement, and did not find any evidence of error, injustice, or inequity.  Based upon the misconduct which led to the applicant’s separation involving the distribution of drugs to others, the Board concluded there was insufficient evidence of an error or injustice which would lead to a change to the applicant’s characterization of service.
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), sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.
The honorable characterization is appropriate when the quality of the soldier’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 provides that 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.

	c.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  

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)	 AR20180003034


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