ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  14 June 2019

	DOCKET NUMBER:  AR20180012796


APPLICANT REQUESTS:  reconsideration of his previous request to upgrade his under other than honorable conditions discharge to honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001053887 on 8 March 2001.

2.  The applicant states he did not have a good lawyer represent him in his case.  The lawyer did not present any of his statements on his behalf that reflected his accountability of the charges against him.

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

	a.  He enlisted on 6 April 1973 in the Regular Army.  

	b.  On 2 November 1973, he accepted nonjudicial punishment (NJP) under Article 15 for one specification of disrespect to a noncommissioned officer.  The portion of the punishment that dictated forfeiture was suspended for one month.  

	c.  On 5 December 1973, that portion of the punishment imposed under nonjudicial proceedings on 2 November 1973, were vacated.  

	d.  On 21 January 1974, he accepted NJP for one specification of disrespect to a noncommissioned officer and one specification of disobeying a lawful order.  

	e.  On 11 April 1974, he was convicted by special court-martial for one specification of willfully disobeying a lawful order from a commissioned officer, two specifications of disrespect to a noncommissioned officer, and one specification of failing to obey a lawful order.  He was sentenced to be confined at hard labor for four months, to forfeit $175 pay per month for four months, and to be reduced to private (PVT)/E-1.  

	f.  On 11 July 1974, that unexecuted portion of his sentenced that extended to forfeiture of $175 pay per month for four months imposed under special court-martial on 11 April 1974 was suspended until 2 November 1974.  

	g.  On 11 October 1974, he accepted NJP for one specification failing to obey a lawful order from a commissioned officer.  His punishment included forfeiture of $76 for a period of one month, extra duty, and reduction to PVT/E-1.  So much of the forgoing punishments pertaining to reduction and forfeiture were suspended for 90 days.  

	h.  On 2 November 1974, that portion of the punishment imposed under nonjudicial proceedings on 11 October 1974, were vacated.  

	i.  On 26 December 1974, he was convicted by summary court-martial for two specifications of disrespect to a commissioned officer and one specification of disobeying the lawful order of a commissioned officer.  The court sentenced him to forfeiture of $250 pay and hard labor without confinement for 45 days. 
per month 

	j.  On 3 January 1975, court-martial charges were preferred against him.  His DD Form 458 (Charge Sheet) indicates he was charged with one specification of disrespect towards a commissioned officer.  He held the rank PVT/E-1.  

	e. On 10 January 1975, he consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  He acknowledged:  

* maximum punishment
* he is guilty of the charge against him or of a lesser included offense
* he did not desire further rehabilitation
* he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions
* 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
	f.  On 5 February 1975, consistent with the chain of command recommendation, the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be discharged with an Undesirable Discharge Certificate (DD Form 258A) and reduced to the lowest enlisted pay grade.  

	g.  On 27 February 1975, he was discharged from active duty.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions characterization of service.  It also reflects he completed 1 year, 9 months, and 3 days of active service with 50 days of lost time.  It also shows that he was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar.  

	h.  On 13 September 1976, the Army Discharge Review Board determined he was properly discharged.  His request for a change in the type and nature of his discharge was denied.  

	i.  On 5 January 1979, the Army Discharge Review Board determined his service was not sufficiently meritorious to warrant upgrade.  His request for a change of his discharge was denied.  

	j.  On 13 August 1980, the Army Discharge Review Board determined he was properly discharged.  His request for a change in the type and nature of his discharge was denied.  

	k.  On 2 July 2001, the Army Board for Correction of Military Records denied his application for an upgrade of his discharge..

4.  By regulation, 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.

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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  Based upon the short term of service completed prior to a pattern of misconduct which lasted over an extended period of time, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his discharge, 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 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 (Discharge for the Good of the Service) 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 (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)	 AR20180012796


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