ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 July 2019

	DOCKET NUMBER:  AR20180003738


APPLICANT REQUESTS: reconsideration of his previous request for 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)

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 AR20110024321 on 17 July 2012.

2.  The applicant states there was no evidence he was involved.  There was no real investigation.  The discharge is currently 34 years old.  Since then, he has matured and he is a born-again Christian.  He enjoys being married and he is a career chef.  He is also currently disabled and is experiencing changes in life that have taught him to understand right from wrong. 

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

	a.  He enlisted in the Regular Army on 25 June 1975. 

	b.  On 18 December 1975, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana. 

	c.  On 8 September 1976, he was convicted by a summary court-martial of two specifications of being absent without leave (AWOL) on 7 May 1976 and 8 May 1976, and one specification of wrongfully possessing marijuana.  The court sentenced him to reduction to E-1, forfeiture of pay, restriction, and extra duty. 

	d.  On 11 April 1977, his commander initiated a bar to Reenlistment Certificate against him citing a variety of violations.  He was furnished with a copy of this bar but elected not to submit a statement.  The bar was ultimately approved. 

	e.  On 3 June 1977, court-martial charges were preferred against the applicant for two specifications of AWOL from 3 to 7 May 1977 and 1 to 3 June 1977, three specifications of failing to go at the time prescribed to his appointed place of duty, and one specification of willfully disobeying a lawful order.  

	f.  On 9 June 1977, the applicant consulted with legal counsel.  He advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  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 acknowledged:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances and that he had no desire to perform further service
* he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge 
* he understood that if the discharge request was accepted he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration
* 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.  On 9 June 1977, his immediate and intermediate commanders recommended approval of the discharge action.  Both commanders recommended the applicant receive only an under other than honorable conditions discharge. 

	h.  Consistent with the chain of command's recommendation, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with AR 635-200, chapter 10.  The separation authority directed the applicant’s reduction to the lowest enlisted grade and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

	i.  On 14 December 1977, the applicant was accordingly discharged.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 10 of AR 635-200, for the good of the service - in lieu of trial by a court-martial with an under other than honorable conditions discharge.  This form confirms he:

* completed 2 years, 1 month, and 23 days of active service
* had 8 days of lost time under Title 10, U.S. Code, section 972 and 44 days of exe excess leave
* was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar

	j.  On 17 July 2012, the Board considered his petition for an upgrade bit found no evidence of an error or an injustice.  The Board denied his request. 

3.  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.

4.  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 relief was not warranted.  Based upon the short term of honorable service completed prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate.

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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

	a.  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.  When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

	b.  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 that a Soldier 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.  The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority.  A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment.

2.  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)	 AR20180003738


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