ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  11 July 2019

	DOCKET NUMBER:  AR20180006769


APPLICANT REQUESTS:  an upgrade of his under other than honorable condition discharge to an honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* DD Form 1966/8 (Record of Military Processing – Armed Forces of the United States)

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:

     a.  He would like to have his discharge upgraded to honorable.  He believes it was unfair as to the type of discharge he received.  He was a good Soldier and did not present any disciplinary problems to his chain of command.  He honored his enlistment contract and always did what he was told.  However, he takes responsibility for his civil conviction.  

     b.  He began his military service at Fort Benning, Georgia as an 11B (Infantryman).  He was an average Soldier at best, but was not a discipline problem.  He was not informed of his under other than honorable condition discharge until a few years later.

3.  The applicant’s service record shows:

	a.  He enlisted in the Regular Army on 22 October 1980.
	b.  On 3 June 1982, he was apprehended and confined by civil authorities on charges of kidnapping and rape.

	c.  On 16 August 1982, the court accepted the applicant’s guilty plea to one charge of rape.

	d.  On 15 September 1982, the applicant was sentenced to a prison term of no less than 10 years and the maximum of 20 years.  He was directed to the care, custody and control of the Kansas Secretary of Corrections.

	e.  On 4 January 1983, his immediate commander notified him of his intent to initiate separation action against him (suspended for 30 days) in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-5b, in effect at the time, for misconduct – civil conviction.  The commander indicated that his recommendation is based on the applicant’s plea of guilty to a charge of rape and his subsequent sentencing of ten (10) to twenty (20) years of prison time.  His earliest consideration for parole is five (5) years.

	f.  On 22 February 1983, the applicant acknowledged receipt of the commander’s intent to separate him, subsequently, he consulted with legal counsel and did not submit statements on his own behalf.  He acknowledged:

* he may expect to encounter substantial prejudice in civilian life because of a general discharge under honorable conditions
* he may ineligible for many or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a Veteran under both Federal and State laws
* he may apply to the Army Discharge Review Board or ABCMR for upgrading if he receive a discharge/character of service that is less than honorable

	g.  Prior to the applicant’s acknowledgment, the immediate commander initiated separation action against him for misconduct – civil conviction.  The chain of command recommended approval.

	h.  On 15 March 1983, consistent with the chain of command’s recommendations, the separation authority approved the discharge under provisions of chapter 14-5b, by reason of misconduct – civil conviction, and ordered his service be characterized as under other than honorable conditions.

	i.  On 31 March 1983, the applicant was discharged from active duty.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Chapter 14, paragraph 14-5b of AR 635-200, reduced to Private/ (E-1) and was issued an Undesirable Discharge Certificate.  He completed 1 year,        7 months and 8 days of net active service with 299 days of lost time.  It also shows he was awarded or authorized the:

* Army Service Ribbon
* Marksmanship Qualification Badge with Rifle Bar (M16)
* Expert Marksmanship Qualification Badge with Grenade Bar

4.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service.  After considering the evidence, the ADRB denied his request.

5.  By regulation, action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed.  A discharge under other than honorable conditions is appropriate for a member discharged under AR 635-200, Chapter 14-5b.

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 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 serious, criminal nature of the misconduct, that resulted in the applicant’s 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, provides for 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 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 characterization would be clearly in appropriate.

	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 soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14, 5b of this regulation provides procedures for separating personnel for a pattern of misconduct – civil conviction.

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 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 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.


ABCMR Record of Proceedings (cont)	 AR20180006769


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