ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  29 May 2019

	DOCKET NUMBER:  AR20180015162


APPLICANT REQUESTS:  an upgrade of his under conditions other honorable discharge.  He also request a personal hearing before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 feels he was wrongfully accused and it was never proven that he was guilty of the crime, it was all hearsay.  He claims that he deserves an honorable discharge because he believes himself to be innocent.  He claims he does not have long to live with terminal epilepsy.  He believes the Army railroaded him when he would not reenlist.  He was scared at the time of the discharge and was afraid to fight the charges.  The applicant believes he was a very good Soldier and was not selling marijuana at any time while in the Army.

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

	a.  He enlisted in the Regular Army 18 April 1977.

	b.  He accepted nonjudicial punishment on/for:

* 9 September 1977, wrongful use of reproachful words to a noncommissioned officer 
* 28 April 1978, showing disrespect to an commissioned officer 
* 14 August 1978, was disrespectful in language toward a warrant officer 
* 21 November 1979, fail to go at the time prescribed to your appointed place of duty
	c.  The complete fact and circumstances surround his discharge are not available for review with this case.  However, the record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged from active duty on 7 May 1980 in accordance with chapter 14-33b of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), due a misconduct (frequent incidents of a discreditable nature with civil or military authorities), with an under other than honorable conditions discharge.  

* he was assigned Separation Code JKA (misconduct)
* he completed 3 years and 20 days of active service
* he was awarded or authorized Marksman Sharpshooter Qualification Badge with Rifle Bar (M-16)

4.  By regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 

5.  By regulation (AR 635-200), members are subject to separation for frequent incidents of discreditable nature with civil or military authorities, an established pattern for shirking, or showing dishonorable failure to pay just debts.  An established pattern showing 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.

6.  In reaching its determination, the Board can consider the applicants 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 that it could reach a fair and equitable decision without a personal appearance from the applicant.

Additionally, based upon the short term of service completed prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, the Board determined there is insufficient evidence to grant relief.  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 (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides 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 -33b of that regulation provides that members are subject to separation for frequent incidents of discreditable nature with civil or military authorities, an established pattern for shirking, showing dishonorable failure to pay just debts, showing 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.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

4.  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 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, 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180015162


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