ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  29 May 2019

	DOCKET NUMBER:  AR20160016018


APPLICANT REQUESTS: 

* an upgrade of his discharge
* a change to the narrative reason for separation
* an honorable discharge certificate
* letter from Case Management Division

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Letter from Army Board for Correction of Military Records

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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160016017 on 9 September 2016.

3.  The applicant states he received an Under Honorable Conditions (General) separation from the Army per AR 635-200, Chapter 13, and Unsatisfactory Performance.  He believes an error or injustice occurred, because his head injury was 100% service connected and not taken into account upon his discharge.  He believes he has both TBI and PTSD.

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

a. He entered active duty on 23 October 1984.

b. On 28 April 1988, the applicant’s immediate commander notified the applicant of
his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) Chapter 13, Separation for Unsatisfactory Performance due to commission of a serious offense.  He received two Article 15 for disrespect and assault consummated by a battery.

c. The applicant acknowledged receipt of the commander's intent to separate him
on 28 April 2008.  He waived consulting legal counsel and representation by military counsel and civilian counsel at no expense to the Government.  He was advised of the importance of consulting with legal counsel, and the consequences of waiving that right.  He acknowledged he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions
* understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded  

d. Subsequent to this acknowledgement and consultation with counsel, his
immediate commander initiated separation action against him due to commission of a serious offense in accordance with AR 635-200, chapter 13.  His chain of command recommended approval.

e. On 10 May 1988, the separation authority approved the applicant's discharge
under the provisions of AR 635-200, chapter 13 with his service characterized as general under honorable conditions.  The applicant was discharged accordingly on 24 May 1988.

f. His DD Form 214 confirms he was discharged for misconduct, Separation Code
JKK, under the provisions of AR 635-200, chapter 13, with his service characterized as general under honorable conditions.  He completed 3 years, 7 months of active service and he had lost time from 24 February to 25 February 1988.

5.  The applicant applied to the Army Review Board Agency (ARBA) for an upgrade of his discharge on 23 August 2016.  

6.  On 28 February 2019, the Army Review Boards Agency Clinical Psychologist, conducted a review of the available documentation pertaining to the applicant and found no evidence the applicant met criteria for a boardable behavioral health condition during his time in service.  There is indication the applicant experienced sleep difficulties, worry, and depressive symptoms; however, he had a history of substance abuse prior to military service and continued using following enlistment.  At the time of separation, the applicant met medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness) and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  This observation does not negate the applicant's post-service diagnosis of Depression from the Department of Veterans Affairs (VA); however, the VA conducts evaluations based on different standards and regulations.  In summary, there is no evidence that a behavioral health condition mitigated the applicant's misconduct which led to an early separation from the Army.

7.  The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal.  The applicant responded, but with no additional information

8.  By regulation (AR 635-200), action will be taken to separate a member for misconduct such as commission of a serious offense.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

a. Soldiers separated under Army Regulation (AR) 635-200, chapter 13
unsatisfactory performance, are assigned the Separation Code JHJ.  The RE Code associated with this Separation Code is RE-3, 3B, 3C.  

b. Soldiers separated under the provisions of AR 635-200, chapter 13, are assigned
the Narrative Reason for Separation as "Unsatisfactory Performance”.

9.  In reaching its determination, the Board can consider the applicant’s 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 there is insufficient evidence to grant relief.  Based upon the medical advisory official findings that there were no mitigating factors to his misconduct and subsequent separation, the Board found insufficient evidence of an error or injustice which would warrant making a change to the characterization of service or the narrative reason for separation.  The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.  He did not provide letters of support nor evidence of post-service achievement for the Board’s consideration.


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 to amend the decision of the ABCMR set forth in Docket Number AR20160016017 on 9 September 2016.


	 
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.  AR 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel.  

   a. Paragraph 3-7a states 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 states 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, of the version in effect at the time, established policy and prescribed
procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record.

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.  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)	 AR20160016018


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