ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20180014970


APPLICANT REQUESTS:  upgrade 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).

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  Claims Incident Thereto).  However, the Army Board for Correction of Military Records (ABCMR) 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 this upgrade so he can get help from the Department of Veterans Affairs (VA); he contends he served his country and, as such, should be eligible for something.  He had no prior incidents while in the service.

3.  The applicant's service records show:

	a.  He enlisted into the Regular Army on 29 December 1986 for a 4-year term.  Following initial training, orders assigned him to Korea.  Effective 1 December 1987, his chain of command in Korea promoted him to private first class/E-3.  In or around February 1988, orders reassigned him to Fort Polk, LA; he arrived at Fort Polk on 20 May 1988.

	b.  On 1 November 1988, local civil authority arrested the applicant for armed robbery and attempted murder.  In or around January 1989, a civil court arraigned him for conspiracy to commit armed robbery; the court subsequently convicted him and sentenced him to 15 years confinement.

	c.  On 8 February 1989, the applicant's commander notified him of his intent to separate the applicant under the provisions of paragraph 14-12c (Acts or Patterns of Misconduct – Commission of a Serious Offense), Army Regulation (AR) 
635-200 (Personnel Separations – Enlisted Personnel).  His basis for this action was the applicant's involvement in an armed robbery and attempted first degree murder.  

	d.  Also on 8 February 1989, the applicant consulted with counsel and acknowledged counsel had advised him of the basis for, and the effects of the separation action; counsel also informed him of his rights and the impact of waiving those rights.  The applicant elected to have his case considered by a board of officers; in addition he requested to personally appear before the board with counsel.  He did not to make a statement in his own behalf.  On 24 April 1989, the separation authority approved the applicant's request and referred his case to an administrative separation board.  

	e.  On 27 June 1989, the applicant elected to waive his right to an administrative separation board.  On 19 July 1989, the separation authority directed the applicant's under other than honorable conditions discharge; he also ordered the applicant's reduction in rank to private/E-1.  On 28 July 1989, the applicant was discharged accordingly; his DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he completed 1 year, 10 months, and 4 days of his 4-year enlistment contract.  He was awarded or authorized the Army Service Ribbon and Overseas Service Ribbon.

4.  The applicant, in effect, requests an upgraded character of service so he can become eligible for VA benefits; he asserts the Board should favorably consider his request because he served his country and had no prior incidents.  Regulatory guidance required commanders to consider Soldiers for separation when they had committed serious military or civilian offenses, the specific circumstances warranted separation, and the Uniform Code of Military Justice (UCMJ) authorized a punitive (i.e. bad conduct or dishonorable) discharge.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency.

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.  The applicant’s contentions were carefully considered.  Based upon the seriousness misconduct, which included criminal behaviors, 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 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  

2.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a stated an honorable discharge was separation with honor.  Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate.  Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense.  An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time.  It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor.

	b.  Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 14-12c applied to Soldiers who had committed a serious military or civilian offense, where the specific circumstances warranted separation and the UCMJ authorized a punitive (i.e. bad conduct or dishonorable) discharge.  

3.  AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions.  Paragraph 6-11 (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade.

4.  The Maximum Punishment Chart in the Manual for Courts-Martial, in effect at the time, showed punitive discharges for the following UCMJ violations:

* Article 80 (Attempted Murder) – dishonorable and bad conduct discharge (maximum punishment was the same as that authorized for the offense attempted)
* Article 122 (Robbery, Committed with a Firearm) – dishonorable and bad conduct discharge
5.  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 on the basis of 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, injustice, or clemency grounds normally should not result in separation pay, 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 upgraded service characterization.


ABCMR Record of Proceedings (cont)	 AR20180014970


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