ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20180009387


APPLICANT REQUESTS:  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)

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 his discharge has affected him from finding gainful employment, as well as barring him from acquiring medical treatment at the local Veterans Administration Medical Center in Erie, Pennsylvania.

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

a.  He enlisted in the Regular Army on 24 November 1993.

   b.  Court martial charges were preferred against him on 2 June 1995.  His DD Form 458 (Charge Sheet) shows he was charged with:

* one specification of hindering the apprehension of another and assisted him by hiding the firearm used in a robbery
* one specification of wrongfully concealing a serious offense by hiding the firearm used in the robbery and failing to make it to known to the civil or military authorities as soon as possible
* one specification of wrongfully possessing approximately 9 grams of marijuana

   c.  He consulted with legal counsel on 21 June 1995 and submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations -Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service).  He acknowledged:

* he is guilty of the charge against him or of a lesser included offense
* maximum punishment 
* he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions
* he may be deprived of many or all Army benefits
* he may be deprived of his rights and benefits of a Veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge

   d.  Consistent with the chain of command recommendation, on 26 June 1995, the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade of Private/E-1.

  e.  On 27 February 1996, he was discharged from active duty under the provisions of AR 635-200, Chapter 10.  He completed 2 years, 3 months and 4 days of net active service.  It also shows he was awarded or authorized the:
  
* National Defense Service Medal
* Army Service Ribbon
* Expert Marksmanship Qualification Bade with Rifle Bar
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar

4.  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. 

5.  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 misconduct which resulted in the applicant’s separation, 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 discharge, the Board concluded that the characterization of service received 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 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 other characterization would be clearly inappropriate.

   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.  Paragraph 3-7c (Under other than honorable conditions states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons or for the good of the service.
   
   d.  Chapter 10 of this regulation states an individual 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. 
   
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 (BCMNRs) 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 court-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 on the basis of 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.  AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.


ABCMR Record of Proceedings (cont)	 AR20180009387


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