ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 July 2019

	DOCKET NUMBER:  AR20180010990


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DAV (Disabled American Veterans) Letter

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 had a miscommunication with the sergeant major and that he was having difficulty adapting to a military environment.  He was 30 days shy of getting out of the service. 

3.  The applicant provides a letter from the DAV stating that they are the accredited representative of the applicant and that they are requesting an upgrade of the applicant’s discharge.  A copy of his DD 214 shows (item 24) character of service as under other than honorable conditions.

4.  A review of the applicant’s service record show the following:

	a.  He enlisted in the Regular Army on 28 February 1984.

	b.  He served in Alaska from 11 July 1984 to 10 July 1986.

	


c.  He accepted nonjudicial punishment on:

*  28 June 1985 for being absent without leave and for failure to be at his appointed place of duty; his punishment included reduction to private/E-2.
* 13 March 1986 for failure to be at his appointed place of duty; his punishment included reduction to private/E-1
* 19 September 1986 for failure to be at his prescribed place of duty; his punishment included reduction to private/E-1
* 16 October 1986 for being drunk on duty on or about 20 September 1986
* 24 October 1986 for failure to be at his prescribed place of duty.

	d.  The record shows he knowingly and wrongfully use some amount cocaine, a schedule II controlled substance on or about 20 August through 4 September 1986.

     e.  DA Form 2823 (Sworn Statement), dated 24 October 1986, was completed by the applicant that states he told X____ that he disliked X____ and wanted to get back at him.  The applicant and X____ said they would steal X____’s stereo.  The applicant thought it was a good idea but forgot about it and never thought that X____ would do it.  When he came back from the field and saw that the stereo was gone he realized what happened.  He went over to X____ quarters and saw X____’s stereo.  X____ told him that he took the stereo out of the window just like they had talked about and that he does not recall X____ saying anything about a watch.  Pr_ce told him that he sold the stereo to a black girl that the applicant had seen several times and he did not know her name.  He also stated that he did not know how much money X____ got for the stereo.  X___ told him that he would share the money with him but the applicant had not received any money from him.

	f.  Court-Martial charges were preferred against the applicant on 9 December 1986.  His DD Form 458 (charge sheet) indicates that he was charged with one specification of stealing a stereo, the property of private first class X___ X____ III.

	g.  On 10 December 1986, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits
* he acknowledged he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated that under no circumstances did he desire further rehabilitation or to perform further military service
* he elected not to submit a statement on his own behalf

	h.  On 23 December 1986, his chain of command recommended approval of the applicant’s request for discharge under the provisions of AR 635-200, chapter 10 for the good of the service with an under other than honorable discharge.

	i.  On 29 December 1986, his subsequent chain of command recommended approval of the applicant’s request for discharge under the provisions of AR 635-200, chapter 10 for the good of the service with an under other than honorable discharge.

	j.  On 30 December 1986, the Judge Advocate General completed a memorandum for record clarifying the battalion commanders recommendation to discharge the applicant in the best interest of the Army with an other than honorable discharge certificate should he be eliminated from the service expeditiously.

	k.  On 31 December 1986, the separation authority approved separation under the provisions of AR 635-200, chapter 10 for the good of the service with an under other than honorable discharge and reduction to the grade of private/E-1.  

	l.  He was discharged from active duty service on 8 January 1987.  His DD Form 214 shows he was discharged with an under other than honorable conditions discharge under the provisions of AR 635-200, chapter 10 for the good of the service-in lieu of court-martial.  It also shows that he completed 1 year, 10 months, and 11 days of active service.  He was awarded or authorized the Army Service Ribbon, and Expert-Marksmanship Qualification Badged (M16).

5.  By regulation, AR 635-200, chapter 10 states that a member who has committed an offense or offenses, the punishment for which, under the UCMJ and the MCM, 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  An under other than honorable conditions discharge was normally appropriate. 

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 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, 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.




ADMINISTRATIVE NOTE(S):

Not Applicable

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, 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.  When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability.

	c.  chapter 10 of the regulation states that a member who has committed an offense or offenses, the punishment for which, under the UCMJ and the MCM,.1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge
for the good of the Service.  The provisions of RCM 1003(d), MCM 1984, do not apply
to requests for discharge per this chapter unless the case has been referred to a court
martial' authorized to adjudge a punitive 'discharge.  The discharge request may be
submitted after, court-martial charges are preferred against the member, or, where
required, after referral, until final action by the court-martial convening authority. A
member who is under a suspended sentence of a punitive discharge may likewise 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 (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.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180010990
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