ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  25 July 2019

	DOCKET NUMBER:  AR20180012500


APPLICANT REQUESTS:   in effect, 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.  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 requested leave because his mother was hospitalized, but was denied.  He was absent without leave (AWOL) for two weeks.  When he returned he was detained by the military police and received an Article 15.  He was demoted, performed extra duty, and spent 30 days on restriction.  He was called into the first sergeant’s (1SG) office and offered a hardship separation which resulted in the present rating.  He was told he would be eligible for benefits.  The 1SG told him the type of discharge he would receive would not affect veteran benefits.  His spouse passed away recently and has affected the household income by 50%.  Approximately four years ago, he applied for schooling under the current G.I. Bill and was denied due to his current discharge rating.  His intention is to go to graphic arts school to enhance his current income so he can meet his current and future cost of living expenses.  His current income is inadequate to pay for schooling.  The loss of his spouse and loss of income has created an extreme hardship in his life.  

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

	a.  He enlisted in the Regular Army on 12 April 1977.

	b.  He accepted nonjudicial punishment on the following dates for:
* 27 September 1977, one specification of AWOL from 25 August 1977 to 12 September 1977; punishment imposed included a forfeiture of $150 for one month and extra duty for 45 days
* 17 November 1977, one specification of failing to go to his appointed place of duty; punishment imposed included forfeiture of $50 for two months and extra duty for 45 days
* 21 March 1978, one specification of AWOL from 1-2 March 1978; punishment imposed included reduction to private (PVT)/E-1 and forfeiture of $90 for one month
* 19 April 1978, one specification of AWOL from 15-17 April 1978; punishment imposed included forfeiture of $92 for one month and extra duty for 14 days
* 10 May 1978, four specifications of failing to go to his appointed place of duty; punishment imposed included forfeiture of $92 for one month and restriction for 14 days

	c.  On 21 March 1978, the commander notified the applicant of his intention to initiate action under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct) for frequent incidents of a discreditable nature with civil or military authorities.  

	d.  On 21 March 1978, after consulting with legal counsel, he waived his right of consideration of his case by a board of officer, his personal appearance before a board of officers and representation by military counsel.  He further declined making a statement on his own behalf.  He acknowledged:

* maximum punishment
* he may expect to encounter substantial prejudice in civilian life in the even a general discharge under honorable conditions is issued
* he may be ineligible for many or all benefits as a veteran under both Federal and State laws as a result of issuance of an undesirable discharger under conditions other than honorable

	e.  On 22 March 1978, the commander initiated separation against the applicant under the provisions of AR 635-200, paragraph 14-33 (Other Misconduct).  He cited the applicant’s Article 15s and stated:

* Applicant had been transferred into present unit as a result of rehabilitative transfer
* He recommended a waiver of the requirements for rehabilitative transfer because: he believed further duty would create serious disciplinary problems
* The applicant was obviously resisting all rehabilitative attempts and continuous rehabilitation would not produce the quality Soldier desired by the Army
	f.  On 22 March 1979, consistent with the chain of command recommendation and a waiver of the requirement for counseling, the separation authority directed the applicant be discharged because of misconduct and issued an under other than honorable conditions discharge.  

	g.  On 19 June 1978, he was discharged from active duty under the provisions of AR 635-200, paragraph 14-33b(1).  His DD Form 214 shows he completed 1 year, 1 month, and 4 days of active service with 32 days of lost time from 25 August to 11 September 1977, 5-16 April 1978, 3-12 March 1978, and 8-9 May 1978.  It also shows he was awarded or was authorized the:

* Expert Marksmanship Qualification Badge with Rifle Bar
* First Class Marksmanship Qualification Badge with Grenade Bar

	h.  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. 

4.  By regulation, action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed; or rehabilitation is impracticable or he is not amenable to rehabilitation measures.  

5.  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 short term of honorable service completed prior to a pattern of misconduct, 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.  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 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period or obligated service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory by not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14-33b (Patterns of Misconduct) states a pattern of misconduct is construed as frequent incidents of discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and/or an established pattern shoeing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents.  
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 the 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.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, 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 upgrade service characterization.

ABCMR Record of Proceedings (cont)	 AR20180012500


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