ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    17 April 2019

	DOCKET NUMBER:  AR20160017076


APPLICANT REQUESTS:  in effect, upgrade of his general under honorable conditions discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Standard Form 180 (Request Pertaining to Military Records)

FACTS:

1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  Claims Incident Thereto).  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's states, at the time of his discharge, they misinformed him by claiming a general discharge under honorable conditions would entitle him to full benefits; he recently learned this was not true.

3.  The applicant's service records show:

	a.  He enlisted in the Regular Army on 19 June 1979.  He immediately reenlisted twice:  on 15 June 1982 and again on 17 May 1985.  (No DD Form 214 is available for these terms of service; effective 1 October 1979, Army Regulation (AR) 
635-5 (Separation Documents) discontinued issuing of DD Forms 214 for immediate reenlistments).  Orders assigned him to Germany and he arrived on 2 December 1985; he was promoted him to staff sergeant (SSG), effective 7 May 1987.

	b.  In or around October 1987, his company commander issued him a letter of reprimand for driving while intoxicated; his commander recommended local filing in the applicant's service record.

	c.  On 18 January 1989, a special court-martial convicted the applicant of driving a passenger car while drunk and being disorderly at an off-post location in a manner that brought discredit to the Armed Forces.  The court sentenced him to reduction in rank from SSG to private/E-1 and confinement for 3 months.  On 20 March 1989, the special court-martial convening authority approved the sentence and ordered its execution.  The applicant was sent to the U.S. Army Personnel Control Facility (PCF) at Fort Knox, KY, arriving on or about 1 February 1989.

	d.  On 31 March 1989, the applicant's PCF commander notified him of his intent to separate the applicant under chapter 13 (Separation for Unsuitability), 
AR 635-200 (Personnel Separations – Enlisted Personnel).  The basis for this action was the applicant's unsatisfactory performance:  he committed willful acts that violated the Uniform Code of Military Justice, which resulted in a special court-martial conviction and a letter of reprimand.  

	e.  On 3 April 1989, after consulting with counsel, the applicant waived having his case considered by an administrative separation board and elected not to submit a statement in his own behalf.  On 20 April 1989, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions; on 22 May 1989, he was discharged accordingly.  His DD Form 214 showed he completed 9 years, 8 months, and 21 days of net active service.  He was awarded or authorized:

* Army Good Conduct Medal (3rd Award)
* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Army Achievement Medal (3rd Award)
* Noncommissioned Officer Professional Development Ribbon 
* Air Assault Badge
* Overseas Service Ribbon with Numeral 3

4.  Although not required at the time, the September 2000 revision of 
AR 635-5 mandated the inclusion of remarks for separating Soldier receiving a less than honorable character of service; the regulation required the addition of the following remark:  "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)."

5.  The applicant requests an upgrade so he may obtain full benefits; he asserts he was misinformed when he accepted a general discharge under honorable conditions.   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, to include the DoD guidance on liberal consideration when considering discharge upgrades, the Board determined that partial relief was warranted.  Based upon the multiple incidents of misconduct, as well as a lack of evidence provided by the applicant to show he has grown and learned from the incident resulting in the discharge, the Board found that the characterization received at the time of discharge was appropriate.  

However, the Board did note that the applicant completed prior honorable service which was not previously noted on his DD Form 214.  For that reason, the Board recommended noting the previous honorable service of the applicant on his DD 214.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 19 June 1979 until 16 May 1985.”
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge Under Honorable Conditions (General).
	 
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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  

2.  AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations.

	a.  Paragraph 1-13a (Honorable Discharge).  An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance.  Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude.  Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses.

	b.  Paragraph 1-13b (General Discharge).  A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge.

	c.  Under chapter 13, commanders were required to initiate separation action for Soldiers who clearly established they would not develop sufficiently to become a satisfactory Soldier based on inaptitude, by having a personality disorder, or by displaying apathy, defective attitudes and/or being unable to expend effort constructively.  Soldiers separated under this provision could be furnished either an honorable or general discharge under honorable conditions.  

3.  AR 635-5 prescribed policies and procedures for the preparation of the DD Form 214.  The 1 October 1979 version of the regulation stated immediate reenlistments no longer required the issuance of DD Forms 214.  Effective September 2000, the remarks section of the DD Form 214 was required to show comments for separating Soldiers who received a less than honorable character of service; the regulation required the addition of the following remark:  "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)."

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)	 AR20160017076


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