ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 August 2019

	DOCKET NUMBER:  AR20180007200


APPLICANT REQUESTS:  In effect, 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)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 AC91-10073 on 25 March 1992.

2.  The applicant states his discharge does not reflect his character.  There is no record of NJP (non-judicial punishment).  He signed papers that were not true, the officer said if he signed some papers he could still join the Army after 2 years which was a lie.  He went to the recruiter after 2 years and he could not reenlist.  That was the injustice done to him.  Since he was lied too, it affected him emotionally.

3.  The applicant provided his DD Form 214 which shows he was discharged under other than honorable conditions due to conduct triable by court-martial on 6 October 1980.

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

	a.  He enlisted in the Regular Army on 15 January 1980.

	b.  He accepted NJP on/for:

* 6 February 1980, without authority go from his appointed place of duty on 2 February 1980 and disobey a lawful order
* 4 March 1980, drunk and disorderly on 18 February 1980

	c.  On 2 April 1980, his immediate commander notified the applicant of his proposed separation under provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) paragraph 5-33, Trainee Discharge Program (TDP).  The specific reasons for the proposed action was: for his failure to pass the Gate II test.  He has displayed severe learning difficulties, apparently caused by an inability to concentrate on training subjects.  He was not consistently motivated; he alternated between a negative attitude towards the Army and a slight willingness to be a successful Soldier.

	d.  On 2 April 1980 the applicant acknowledged the notification.  He did not desire to make a statement or have a separation examination.  His immediate commander initiated the separation UP AR 635-200 paragraph 5-33 TDP.

	e.  On 4 April 1980, his intermediate commander recommended disapproval of proposed separation of the applicant.  His recommendation was:

* That he report to personnel management for a review of his contract and be advised of any change in his obligation that can be accomplished
* That upon change of his contract to infantry or another branch that he be allowed to continue training towards another MOS (military occupational specialty)
* That if it is not possible to approve a MOS change, that this Soldier be discharged UP of AR 635-200

	f.  On 8 April 1980, the approval authority disapproved the proposed separation and requested a review of his contract for reclassification of his MOS to 11B (Infantry), as he cannot complete armor training due to his inability to comprehend and retain material associated with the technical manuals.

	g.  DD Form 458 (Charge Sheet) shows on 15 September 1980 court-martial charges were preferred on the charge of attempts with one specification of a place outside the territorial limits of the United States, on or about 14 August 1980 in conjunction with X__ and X__, attempt, by means of force and violence, to steal from the person of X__, against his will, a wallet, of some value, the property of X__.

	h.  On 26 September 1980, he consulted with legal counsel and subsequently requested discharge under the provisions of AR 635-200, chapter 10 (Discharge for the Good of the Service).  He acknowledged:

* the maximum punishment if found guilty
* if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate
* if approved, he would be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

	i.  On 29-30 September 1980, his chain of command recommended separation UP of AR 635-200, chapter 10 and that he be discharged under other than honorable conditions.

	j.  Consistent with the chain of command's recommendation, on 1 October 1980 the separation authority approved the applicant’s request for discharge for the good of the service and ordered his service be characterized as under other than honorable conditions.  He would be reduced to the lowest enlisted pay grade.

	k.  On 6 October 1980, he was discharged UP of AR 635-200, Chapter 10 under conditions other than honorable in the rank of private/E-1.  The narrative reason for separation is court-martial.  He completed 8 months and 22 days of active service.

5.  On 31 March 1992, the applicant was notified that the Board considered his previous application under procedures established by the Secretary of the Army, and the application was denied.

6.  By regulation (AR 635-200), chapter 10 provides 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.  A discharge under other than honorable conditions is normally considered appropriate.

7.  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 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 separation 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 – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 1-13a(1) states 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.  Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ.  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge.  It is pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. When there is doubt as to whether an honorable or general discharge should be furnished, the doubt should be resolved in favor of the member.

	b.  Paragraph 1-13a(2) states an honorable discharge may be furnished when disqualifying entries in the member's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. Careful consideration will be given to the nature of the offense and sentence adjudged by a court-martial.  When, in the opinion of the officer effecting discharge, these have not been too serious and severe, and the remainder of the service in the enlistment has been such that an honorable discharge may be awarded, doubt should be resolved in favor of the member.

	c.  Paragraph 1-13b states 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.  The member may have had frequent non-judicial punishments but not for serious infractions.  He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record.

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 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)	 AR20180007200


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