ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  1 April 2019

	DOCKET NUMBER:  AR20160015458


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Unclear copy of DD Form 214

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’s been trying for over thirty years to upgrade from General to Honorable.  His DD Form 214 is incorrect; his net service period is correct but his discharge date is wrong which has caused him to lose some privileges as a veteran.  A review of his records will show him working with CID and the MP’s with the many thefts that took place in the motor pool.  This is why he was able to be discharged under honorable conditions as opposed to confinement.   

3.  On 6 April 1984, the applicant enlisted in the Regular Army for three years.  

4.  On 13 February 1985, he received non-judicial punishment (NJP) for wrongfully use of marijuana.

5.  On 6 June 1985, he received NJP for being absent without leave (AWOL) from on or about 1 April 1985 to on or about 11 April 1985.

6.  On 15 June 1985, he received NJP for wrongfully and unlawfully writing checks for $25.00 and 9.95 to the Marine Corps West Federal Credit Union.


7.  A record of court-martial conviction shows the applicant was found guilty for:

* 24 - 26 June 1985 - Failure to Repair
* 9, 18 June 1985 – wrongfully use marijuana
* 18 June 1985 – have possession of marijuana
8.  The applicant 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 14-12b, misconduct.    

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

* Series of acts of misconduct
* Positive Urinalysis for marijuana twice
* AWOL from 1- 11 April 1985
* Writing bad checks
* Having in possession a controlled substance, marijuana
   
   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, and recommended he be issued an General, UOTHC discharge certificate.

9.  On 1 August 1985, the applicant was discharged accordingly.  He completed 2 years and 27 days of net active service with a characterization of General.  

12.  Army Regulation 635-200 (Personnel Separations) provides a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.
13.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  The Board has is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process.
14.  The applicant states he’s been trying for over thirty years to upgrade his discharge.  He was able to be discharge without confinement because he assisted CID and the MPs with helping with thefts in the motor pool.  A review of his records show confinement for failure to repair, wrongful use and possession of marijuana.    

15.  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. 

16.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  The Board should consider the applicant's petition, his service record, and his statement in light of the published Department of Defense guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  The Board agreed that the applicant's discharge characterization was warranted as a result of 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 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.
 
     d.  Chapter 1, paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not produce a quality Soldier.
 
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 a discharge, which may be warranted based on equity or relief from injustice.  
 
     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, 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.  
 
     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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160015458
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