ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  26 July 2019

	DOCKET NUMBER:  AR20180011833


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Self-Authored Statement

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 is requesting an upgrade of his discharge to general, under 
honorable conditions.  He had no bad time and was stripped of his air assault 
commendation, which he felt was very unfair.  His treatment was unfair considering he 
served his country proudly as a combat Soldier and he believes they took advantage of 
him.

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

   a.  He enlisted in the Regular Army on 10 May 1977.

b.  He received nonjudicial punishment (NJP) on/for:

*	26 July 1978, failure to obey a lawful order and being disrespectful in 
deportment; his punishment included reduction to private/E-2 and forfeiture of 
$100.00 for one month
*	25 January 1979, wrongful possession of marijuana; his punishment included 
reduction to private/E-2 and forfeiture of $150.00 for one month
*	24 April 1979, wrongful possession of marijuana; his punishment included 
reduction to private/E-1
*	4 December 1979, failure to obey a lawful order

   c.  On 9 January 1980, court-martial charges were preferred against him.  His first  
DD Form 458 (Charge Sheet) is not included in the record; however, his request for 
discharge indicates he was charged with three specifications of failure to report to his 
appointed place of duty and one specification of disobeying a lawful order.  The second 
DD Form 458 indicates he was charged with two specifications of failure to obey a 
lawful order by not remaining seated as he was directed and by not shaving.  He held 
the rank/grade of private/E-2.

	d.  On 24 January 1980, 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 
acknowledged: 

*	maximum punishment
*	he is guilty of the charge against him or of a lesser included offense
*	he did not desire further rehabilitation or further military service
*	he understood that if his request for discharge was accepted he could be 
discharged under other than honorable conditions and furnished an Under 
Other than Honorable Discharge Certificate
*	he would be deprived of many or all Army benefits administrated by the 
Veterans Administration
*	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 
undesirable discharge

	e.  On 8 February 1980, 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 discharged with an under other than honorable 
conditions discharge and reduced to the lowest enlisted grade.

   f.  On 26 February 1980, he received nonjudicial punishment for failure to report to 
his appointed place of duty; his punishment included reduction to private/E-1

	g.  On 11 March 1980, he was discharged from active duty under the provisions of 
AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 for the good of 
the service.  He completed 2 years, 10 months, and 2 days of active service.  It also 
shows he was awarded or authorized:

*	Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
*	Sharpshooter Marksmanship Qualification Badge with Hand Grenade
*	Sharpshooter Marksmanship Qualification Badge with M-60 Machine Gun
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.  By regulation, an individual who has committed an offense or offenses, the 
punishment for any of which includes a bad conduct discharge or dishonorable 
discharge, may submit a request for discharge for the good of the service.  An Under 
Other than Honorable Discharge Certificate normally is appropriate for a member 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 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 short term of honorable service completed prior to a pattern 
of misconduct, 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, 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.

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 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.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180011833

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