ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    9 April 2019

	DOCKET NUMBER:  AR20160014981


APPLICANT REQUESTS:  The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to under honorable conditions (general).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Security Guard Training Certificate
* Class C Driver’s License

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 was a good Soldier and a good person and feels he wasn’t given a fair deal.  He did have a verbal altercation with someone of higher rank but it was not physical.  He’s trying to make something of his life but his discharge is effecting him greatly.  He requests a fair decision and whole heartedly believes he should be upgraded to a general discharge.

3.  On 17 October 2000, the applicant enlisted in the Regular Army.

4.  On 8 November 2001, he received non-judicial punishment (NJP) for wrongfully use of marijuana.

5.  On 13 September 2002, he was charged with the following:

* Failing to go to his prescribed place of duty on 27 April 2002
* Wrongfully use marijuana on 19 May 2002 and 19 June 2002
* Breaking restriction on 14 April 2002

6.  On 10 October 2002, the Record of Trial by Summary Court-Martial shows he pled and was found guilty of the charges.  He was sentenced to 15 days confinement and 15 days restriction, to the limits of Fort Carson, Colorado.  He was released on 22 October 2002.  

7.  On 2 November 2002, he was notified by his commander that he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200, (Active Duty Enlisted Administrative Separations) paragraph 14-12c, Commission of a Serious Offense and of his available rights.  

     a.  The reasons for the proposed include but are not limited to:  

* Conviction by a summary court-martial
* Wrongful use of marijuana 
* Disrespect towards a noncommissioned officer
* Failure to be at his appointed place of duty
   
   b.  The applicant acknowledged being notified for the contemplated separation action against him; he was made aware of his available rights and consulted with legal counsel.  
   
     c.  The applicant's intermediate commander recommended approval and the appropriate authority waived rehabilitation efforts, approved the recommendation for discharge of the applicant and directed he be issued an UOTHC discharge certificate.

8.  On 30 December 2002, the applicant was discharged accordingly.  He completed 2 years, 2 months, and 14 days of net active service with a characterization UOTHC. 

9.  The applicant applied to the ADRB to upgrade his discharge.  On 5 December 2003, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

10.  The applicant states he is a good person and did not get a fair deal.  His records show received the National Defense Service Medal and the Army Service Ribbon but did not complete his first full term of service.

11.  Army Regulation 635-200 provides states members are separated under chapter 14 because of minor disciplinary infractions, pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  The issuance of a discharge under other than honorable conditions is normally considered appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 
12.  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 reviewing the application and all supporting documents, the Board determined relief was not warranted.  One outcome discussed was to grant the request based upon the type of misconduct and guidance concerning liberal consideration.  However, the Board concluded that based upon the multiple occasions of misconduct over extended periods of time, the characterization of service received at the time of discharge was appropriate.  

The Board did want to recommend to the applicant that if he was interested in submitting a request for reconsideration that he consider submitting some character statements from friends and others who can demonstrate that he has grown as an individual from the time of discharge, so that his reconsideration packet provides more detail in that area.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	X:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

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 sets forth the basic authority for the separation of enlisted personnel.
   a.  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.   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.  

     c.   Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 

          (1)  The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of 
Chapter 14.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate.  A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated.

          (2)  Paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline.

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 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)	 AR20160014981
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