ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 August 2019

	DOCKET NUMBER:  AR20180005725


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge or Dismissal From the Armed Forces of the United States)
* DD Form 149 (Application for Correction of Military Record)

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 at the time of the incident he was working in the battalion lounge.  A customer came in and purchased a drink and paid cash.  He tendered the cash and gave the appropriate change that was due for the alcohol purchase.  The money was placed in the till and the same evening, shortly after the purchaser left, the marked bill was found in the register he was deemed guilty.  The only crime he committed was doing his job as a bartender - not selling drugs.

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

	a.  He enlisted in the Regular Army on 10 March 1976.

	b.  He served in Germany from 25 July 1976 to 4 May 1978.

	c.  He accepted nonjudicial punishment on 10 May 1977 for failure to go to appointed place of duty on 22 April 1977.  His punishment consisted of forfeiture of $101.00 pay per month for 1 month (suspended).


	d.  Court-martial charges were preferred against him on 3 March 1978.  His 
DD Form 458 (Charge Sheet) shows he was charged for wrongfully selling marijuana on or about 12 January 1978.

	e.  On 9 March 1978, additional court-martial charges were preferred against him.  His additional DD Form 458 shows he was charged for possession of 10.68 grams more or less of marijuana on 12 January 1978.

	f.  On 10 March 1978, his immediate command recommended trial by special court-martial.  

	g.  Subsequent, to legal counsel, the applicant requested discharge under the provisions of chapter 10, AR 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial.  He acknowledged:

* maximum punishment
* he understood if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an Under Other Than Honorable Discharge Certificate
* he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the Department of Veterans Affairs and benefits of a Veteran under Federal and State law

	h.  On 11 April 1978, his chain of command recommended approval of his discharge under other than honorable conditions for the good of the service.

	i.  On 22 April 1978, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200 for the good of the service.  The applicant was reduced to the grade of E-1.  He was issued an Under Other Than Honorable Discharge Certificate.

	j.  On 5 May 1978, he was discharged.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Chapter 10, AR 635-200, under other than honorable conditions.  He completed 2 years, 1 month, and 26 days of active service.  He was authorized or awarded the Sharpshooter Marksmanship Badge with Rifle Bar (M-16).

	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, chapter 10 of AR 635-200 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.  A discharge under other than honorable conditions is normally considered appropriate.
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 multiple drug offenses and the other pattern of misconduct in the record, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, 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.  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 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 for the member’s age, length of service, grade, and general aptitude.

	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 record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The recipient of a general discharge is normally a member whose military record and performance is satisfactory.

	c.  Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, 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.  However, the discharge authority may direct an honorable or general discharge if such are merited by the member’s overall record during the current enlistment.

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)	 AR20180005725


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