ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  6 August 2019

	DOCKET NUMBER:  AR20180009668


APPLICANT REQUESTS:  reconsideration of his earlier request for 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 (Report of Separation 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 AR20100010251 on 8 September 2010.

2.  The applicant states he was wrongfully advised by the lawyer on base that he should accept a Chapter 10 discharge or be court-martialed.  I was sick at the time and addicted and not in his full mental capacity.  He took the bad decision and it affected his life and his military career.  He is trying to correct some of the damage to obtain health benefits that were denied due to his discharge.  He needs it corrected to be at least under honorable conditions.

3.  A review of the applicant’s service record shows: 
   
   a.  He enlisted in the Regular Army on 1 November 1973.

   b.  On 28 March 1974, he received nonjudicial punishment for failure to obey a lawful order and for using provocative language.  His punishment included forfeiture of $50.00 per month for two months.  
   
   c.  On 17 October 1975, court-martial charges were preferred on the applicant for being absent without authority from 9 June 1975 to 13 October 1975.  On 22 November 1975, a second set of court-martial charges were preferred on the applicant for being absent without authority from 29 October 1975 to 11 November 1975.

	d.  On 20 November 1975, after consulting with legal counsel he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  He elected to submit a statement on his own behalf (not available for review).  He acknowledged:

* maximum punishment
* he was guilty of the charges against him or of a lesser included offense
* he does not desire further rehabilitation or further military service
* if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate 
* he would be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the Veterans Administration, 
* 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

	e.  On 5 January 1976, consistent with the chain of command recommendations, the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be issued an Undesirable Discharge Certificate and reduced to the lowest enlisted grade.

	f.  On 13 January 1976, the applicant declined a separate document explaining the narrative reason for his separation from the United States Army, a narrative description of the authority for his separation and the reenlistment code.

	g.  On 13 January 1976, he was discharged from active duty with an under other than honorable conditions characterization of service.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 9 months, and 22 days of active service with 141 days lost time.  It also shows he was awarded or authorized the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  On 26 February 1982, the applicant was notified the Army Discharge Review Board (ADRB) reviewed his discharge processing but found it proper and equitable.  The ADRB denied his request for an upgrade of his discharge. 

5.  By regulation, 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.  An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service.

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 relatively short term of honorable service completed prior to a pattern of misconduct which included a lengthy AWOL offense, 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  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.  An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service.

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)	 AR20180009668


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