ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  5 August 2019

	DOCKET NUMBER:  AR20180010744


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* Self-authored statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
 
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 in his self- authored statement, while he was stationed at the 101st Airborne Division he had a friend who said he had too much stuff in the pawn shop.  He could not pawn anything else.  He asked the applicant to pawn a calculator for him and the applicant later discovered it was stolen.  He got in trouble for it and received an undesirable discharge, as a result.  He has been out of the Army for forty one years and has lived a productive life.  He has never been in any major trouble except for traffic violations.  He would appreciate it very much if the Board could evaluate his concerns and upgrade his discharge.

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

a.  He enlisted in the Regular Army on 17 November 1975.


   b.  The complete facts and circumstances surrounding his discharge are not available to the Board for review.  However, on 3 June 1976, after consulting with counsel, the applicant voluntarily requested a discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10.  He understood:

* the rights available to him
* he is guilty of the charges against him or lesser included offenses
* he does not desire further rehabilitation 
* he has no desire to perform further military service
* if approved he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* he may 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

   c.  On 28 June 1976, the separation authority approved the request for discharge for the good of the service and directed he be issued an undesirable discharge certificate and reduced in rank to PVT/E-1.
   
   d.  On 30 June 1976, he was discharged from active duty under the provisions of   AR 635-200, Chapter 10.  His DD Form 214 shows he completed 7 months and 14 days of net active service.

4.  On 16 July 1987, the Army Discharge Review Board (ADRB) reviewed the applicant’s discharge processing but found it proper and equitable.  The ADRB denied his request for an upgrade of his discharge.

5.  By regulation, a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service.

6.  The Board should 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 his voluntary request for discharge in lieu of court-martial, the Board determined he admitted guilt to a criminal offense in which his command preferred charges that could have resulted with a BCD.  Additionally, based on the short term of honorable service completed prior to his offense of a criminal nature, 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 (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 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 or 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) is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security.
   
   c.  Paragraph 1-9f (Undesirable Discharge) states an undesirable discharge is an administrative separation from the Service under conditions other than honorable.  It may be issued for unfitness, misconduct, homosexuality, or for security reasons.
   
   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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180010744


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