ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 July 2019

	DOCKET NUMBER:  AR20180008681


APPLICANT REQUESTS: 

* an upgrade of his under other than honorable conditions discharge
* personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
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 he has tried everything he could to get into the Camillus House with respect and honor.  He tried again, but only to be met with anger and rejection.  He need to apply for service connected disability.  He is requesting an upgrade to his discharge and to appear before the Board to be allowed to tell his story.

3.  A review of the applicant’s service record shows the following:
	a.  He enlisted in the Regular Army on 18 February 1975.

	b.  He accepted nonjudicial punishment on 5 August 1975 for unlawfully threatening to strike an officer and non-commission officer.

	c.  On 22 September 1975, he was convicted by a special court-martial of one specification of unlawfully strike PV2_W in the face with his fist and wrongfully having marijuana in his possession.  The court sentenced him to confinement at hard labor for 2 months and forfeiture of $150 pay per month for 2 months.

	d.  On 10 November 1975, the convening authority approved a lesser sentence of confinement at hard labor for 47 days and forfeiture of $150 pay per month for 2 months. 
	e.  The complete fact and circumstances surrounding his discharge are not available for review with this case.  However, his record contains: 

		(1)  A document, dated 10 November 1975, Subject: Action by the Convening Authority.  It shows on 10 November 1975, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) and ordered the applicant furnished an Undesirable Discharge Certificate and reduction to private/E-1.

		(2)  DD Form 214 (Report of Separation from Active Duty) that shows he was discharged from active duty on 12 November 1975, in accordance with chapter 10 of AR 635-200 for the good of the service, in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 7 months and 9 days of active service.  He had 47 days of lost time.

4.  By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.

5.  By regulation (AR 635-200), Chapter 10, 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, United States, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service, in lieu of trial by court-martial.

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:

The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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 multiple offenses of a criminal nature, which included violent misconduct towards others, 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), in effect at the time, provides for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a Soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority.  A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment.

	a.  Paragraph 1-13 (Honorable discharge) 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.

	b.  Paragraph 1-13b (General discharge) 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.

	c.  Paragraph 1-13c (Under other than honorable conditions) A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, for security reasons, or for the good of the service

	d.  Paragraph 11-2 (Bad Conduct Discharge ) A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

3.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, states applicants do not have a right to a formal hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

4.  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 ABCMRs 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, ABCMRs 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.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180008681


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