ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  29 April 2019

	DOCKET NUMBER:  AR20180016822


APPLICANT REQUESTS:  In effect, his discharge be upgraded.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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 was discharged without any knowledge of the reason his discharge was dishonorable.  He feels his sergeant was against him as he told him he would see to it that he got out of the Army.  It was unjust that he was never able to do anything about his discharge and is now being penalized for being young and not knowing what to do.  He feels he should have taken the court-martial and then he would have known the reasons for his discharge.

3.  The applicant enlisted in the Regular Army on 14 February 1973 with immediate reenlistments on 24 January 1975 and 11 April 1980.

4.  The applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses:

* on 27 August 1980, for being drunk in command, on or about 21 August 1980 
* on 15 October 1980, for driving while intoxicated, on or about 10 October 1980

5.  A bar to reenlistment was imposed against the applicant on or about 25 November 1980.  The DA Form 4126-R (Bar to Reenlistment Certificate) lists the reasons for the bar as:
* a special court-martial conviction from his first enlistment period
* two instances of NJP (during this enlistment)
* his unit commander's statement that the applicant had received numerous counseling statements for being a substandard performer; had failed to pay his just debts; and had difficulties within his housing area with formal complaints being filed

6.  The applicant's available records do not contain any of the separation processing documents.

7.  The applicant was discharged on 4 May 1981.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b (1), for misconduct – frequent incidents of a discreditable nature with civil or military authorities.  His service was characterized as under other than honorable conditions (UOTHC).  His DD Form 214 shows:

* he was discharged in the rank/grade of private/E-1
* he had 1 year and 24 days of net active duty this period
* 7 years, 1 month and 27 days of prior active service 
* award of the Army Good Conduct Medal (2nd award)

8.  The applicant has not provided and the record does not contain any indication that the applicant was considered for or court-martial charges were preferred.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The board applied Office of the Secretary of Defense standards of liberal consideration to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity. The applicant stated that he was discharged without knowing why, however the applicant’s signatures are on his NJP forms and his Bar to Reenlistment, which list the reasons for the applicant’s unsuitability. The applicant also states that he was young at the time, but the Board assessed that his 10 years of active service and age of 27 years at the time of discharge countered the applicant’s contentions. the Board agreed that the applicant’s discharge characterization is appropriate for the misconduct.





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.

ADMINISTRATIVE NOTE(S):

Not Applicable


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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.
   
   c.  Paragraph 14-33b(1), as the in effect, provides that a Soldier may be discharged for a pattern of conduct consisting of one of the following: discreditable incidents involving civil or military authorities; or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.  A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  
   
4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds.  

	a.  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, Boards 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.  

	b.  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)	 AR20180016822
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