ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 August 2019

	DOCKET NUMBER:  AR20180005656


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

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)
* Self-Authored Statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 23 December 1971
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 26 February 1991

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 accused of allowing a person to steal property out of the supply room.  This is a false allegation.  His unit did not believe him and he was reduced to E-1 and separated.  Prior to this incident, he was an exemplary Soldier, earning three Good Conduct Medals and an Army Commendation Medal.  Less than three months prior to this incident, he was awarded a certificate of achievement for exemplary supply operations.  

	a.  He was proud to serve in the military and believes he was railroaded out of the military.  He was so proud he influenced his son to join the military.  He successfully completed his military service and used the skills earned to become a respiratory therapist.  His family has a long history of military service and he is proud to say that they have faithfully dedicated their lives to helping others.

	b.  Since his separation he has been a model citizen.  He has worked in several positions of high trust.  He worked as a security guard, providing for the safety and security of a college campus and over 2500 students a year for five years.  In addition, he drove a school bus and tour bus.

	c.  In these positions, he was entrusted with the safety, security and accountability of a million dollars’ worth of equipment.  He has never had an incident of loss of accountability of any equipment while working these jobs.  He was young and should have fought harder to prove his innocence when he was accused.  However, he trusted his chain of command would see the truth for what it was.  This was a false allegation and the resulting action robbed him of my military career and to this day prevents him from attaining his much needed Veterans Administration medical benefits.

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

	a.  He was inducted into the Army of the United States on 18 May 1970 and he was honorably released from active duty on 23 December 1971. His DD Form 214 (armed Forces of the United States Report of Transfer or Discharge) show he completed 1 year, 7 months, and 6 days of active service.   

	b.  After a break in service, on 21 May 1980, he enlisted in the Regular Army (RA).  He served in Panama from 24 September 1980 to 12 September 1983.  

	c.  On 24 June 1983 and 31 July 1986, he immediately reenlisted in the RA.  He was promoted to staff sergeant/E-6 in July 1986 and he served in Germany from 30 January 1988 to 28 January 1990.  

	d.  On completion of his Germany tour, he rotated back to Fort Sill, OK.  He was assigned to 6th battalion, 32nd Field Artillery.

	e.  On 3 October 1990, he accepted nonjudicial punishment (NJP) for one specification of conspiracy, one specification of larceny, one specification of sale of military property, one specification of damage of military property, and dereliction of duty.  His punishment included reduction to sergeant/E-5, forfeiture of $600 pay per month for two months, and extra duty and restriction for 45 days. 

	f.  On an unknown date, the commander notified the applicant he was initiating action to separate him under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c (Commission of a Serious Offense) for the offenses which were the basis for the NJP received on 3 October 1990; conspiracy to commit larceny, larceny of Government property, damage to Government property, selling of Government property, and dereliction in the performance of duties.  There is no acknowledgement of receipt for the Board to consider.  

	g.  On 23 October 1990, after consulting with legal counsel, he requested a conditional waiver whereby he would voluntarily waive consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions.  He acknowledged:

* the effect of any action taken in waiving his rights
* he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued

	g.  On 14 December 1990, consistent with the chain of command recommendation, the separation approval authority denied his request for conditional waiver and directed an administrative board of officers be convened.  

	h.  On 16 January 1991, an administrative board of officers was convened.  The board found the applicant undesirable for further retention in the military service because of his misconduct under provisions of AR 635-200, chapter 14 (Separation for Misconduct).  The board recommended he be discharged because of his misconduct and furnished an under other than honorable conditions discharge.  

	i.  On 17 February 1991, the separation approval authority approved the findings and recommendations of the administrative separation board.  He ordered the applicant discharged with an under other than honorable conditions characterization of service, and further directed the applicant be reduced to the lowest enlisted grade.  

	j.  On 26 February 1991, he was discharged from active duty under the provisions of AR 635-200, paragraph 14-12c, and issued a under other than honorable conditions discharge.  His DD Form 214 reflects that the applicant completed 10 years, 9 months, and 6 days of active service.  It also shows that he was awarded or was authorized the:

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Army Good Conduct Medal (3rd Award)
* Army Service Ribbon
* Overseas Ribbon (2nd Award)
* Noncommissioned Officer Professional Development Ribbon

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

4.  By regulation, members are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial.  

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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the criminal nature of the misconduct which led to the applicant’s separation, as well as some involving violent behavior, the Board concluded that the characterization of service received at the time of discharge was appropriate.

However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 21 May 1980 until 30 July 1986.”
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.
	 
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 Discharge) states 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 Discharge) states 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 by not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-7c (Under Other Than Honorable Conditions) states 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, fraudulent entry, homosexuality, security reasons, or for the good of service.

	d.  Paragraph 3-11 (DD Form 259A (Bad Conduct Discharge)) states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	e.  Paragraph 14-12c (Commission of a Serious Offense) states members are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial.  

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 the 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, 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 upgrade service characterization.

4.  AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214.  It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment).



ABCMR Record of Proceedings (cont)	 AR20180005656


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