ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 July 2019

	DOCKET NUMBER:  AR20180008593


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

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)
* Monterey County Military and Veteran Affairs Office
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 discharged because of physical training (PT) test failures.  He had a hard time running and was not allowed to go to sick-call to get help instead, he was sent to remedial PT and was in pain and could not perform PT.  He was not malingering and was arbitrarily kicked out of the Army. 

3.  The applicant provides a letter from the Monterey County for Military and Veterans Affairs Office with a copy of the applicant’s DD Form 293 and a copy of his                 DD Form 214
4.  A review of the applicant’s service record shows: 

	a.  He enlisted in the Regular Army on 16 January 1978 and reenlisted on 25 July 1980 for continuous service.

	b.  He accepted nonjudicial punishment on 24 September 1982, for three specifications of disobeying a lawful order directed by non-commissioned officers.  
	c.  DD Form 458 (Charge Sheet), dated 27 October 1982, shows special court-martial charges were preferred against him for three specifications of disobeying a lawful order from non-commissioned officers.

	d.  On 5 November 1982, he consulted with legal counsel and was advised of his rights. Following consultation with counsel, he subsequently requested, a 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 this request, the applicant admitted guilt to the offense, or a lesser included offense.  In his request, he acknowledged:

* he did not desire further rehabilitation or a desire to perform further military service
* Ii his discharge was approved, he may be discharged with an under other than honorable conditions discharge
* he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State law
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge

e.  Consistent with the chain of commands recommendations on 9 November 1982,
the separation authority approved the applicant’s request for discharge and furnished an Under Other Than Honorable Conditions Discharge Certificate.

f.  The applicant was discharged on 17 November 1982, from active duty under the
provisions of AR 635-200, Chapter 10.  He completed 4 years, 10 months and 2 days of net active service during this period of service.  He was awarded or authorized the Expert Marksmanship Qualification Hand Grenade, Army Service Ribbon, and the Overseas Service Ribbon.

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

6.  By regulation, discharges under the provision of AR 635-200, Chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court-martial.

7.  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 review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the pattern of misconduct, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel.  

     a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 provides that 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, 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.

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180008593


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