ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 July 2019

	DOCKET NUMBER:  AR20180012639


APPLICANT REQUESTS:  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 (Certificate of Release or Discharge 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 is requesting an upgrade of his under other than honorable conditions discharge.

	a.  He was unjustifiably accused of being involved in an altercation because some of his acquaintances were involved; however, he was outside in the parking lot when it took place.  He informed the police that he was not there, but was accused of lying to law enforcement because he was in the parking lot when the altercation took place.

	b.  His supervisors knew he was not involved, yet he was still held accountable for the actions of his acquaintances.  He was not inside when the altercation took place and had no way of preventing it from happening.  Upon separation he was notified that he would still have access to benefits and he decided not to fight the discharge at the time because he was disappointed and discouraged.

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

a. He enlisted in the Regular Army on 11 January 1995.

   b.  His service record is void of any documentation regarding the initiation and notification of separation proceedings under the provisions of Chapter 14.
   
   c.  A letter from the U.S. Army Criminal Investigation Command, dated 24 April 2019, included two DA Forms 4833 (Commander’s Report of Disciplinary or Administrative Action) and military police (MP) report pertaining to the applicant at the request of the Army Review Boards Agency.  
   
   d.  A prior incident was included as part of the supporting documentation provided by the Criminal Investigation Command.  The first DA Form 4833 noted the applicant received a General Officer Memorandum of Reprimand for driving while intoxicated on 30 September 1995.
   
   e.  The second DA Form 4833, dated 4 November 1996, indicated the applicant plea bargained to collaborate with officials and by doing so received an administrative discharge (chapter 14).  MP Report Number XXXXX-XX-XXXXXXX, dated 7 October 1996, listed the following offenses committed by the applicant:
   
* attempted larceny
* wrongful damage to private property
* conspiracy to commit larceny

   f.  The report further noted the applicant and another person were observed in a vehicle that did not belong to them and when confronted, a verbal altercation turned physical.  The applicant and the other person fled the scene and military policy located the applicant.  He rendered a sworn statement that was false, he was re-advised of his rights, and he waived his rights.  He subsequently rendered a second sworn statement admitting to conspiracy to commit larceny, attempted larceny, and wrongful damage to private property.  

   g.  On 30 September 1996, coordination was made with the Staff Judge Advocate who opined the applicant could be charged with the above listed offenses.  

   h.  He was discharged from active duty on 6 May 1997.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14-12c (misconduct -commission of a serious offense) with an under other than honorable characterization of service.  He completed 2 years, 3 months, and 26 days of active service with no foreign service and no lost time.  It also shows he was awarded or authorized:
   
* National Defense Service Medal
* Army Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Hand Grenade
* Marksman Marksmanship Qualification Badge with Rifle Bar
i.  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 Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed.  

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 criminal nature of the misconduct which led to the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met, the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

   c.  Chapter 14 of the regulation states action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed.  

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.


ABCMR Record of Proceedings (cont)	 AR20180012639


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