ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:      29 March 2019

	DOCKET NUMBER:  AR20160018496


APPLICANT REQUESTS: upgrade of his general discharge and a personal appearance before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge) 

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 "Previous 9/11 Montgomery GI Bill dishonorable." 

3.  Review of the applicant's records shows: 

	a.  13 March 1996 he enlisted in the Regular Army (RA).

	b.  13 August 1996 to 7 November 1997, he served in Korea. 

	c.  11 October 1996, he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for two counts of being disrespectful and four counts of disobeying a lawful order.  His punishment consisted in part of reduction to E-1. 

	d.  22 August 1997, he accepted NJP under Article 15 for failing to go at the time prescribed to his appointed place of duty on 5 different occasions.  His punishment consisted in part of reduction to E-1 and suspended forfeiture of pay. 

	e.  16 October 1997, separation proceedings were initiated for a pattern of misconduct under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), paragraph 14-12b.  His immediate commander recommended a general discharge.
	f.  16 October 1997, he consulted with legal counsel.  He was advised of the basis for the contemplated action to separate him for misconduct.  He declined making a statement on his own behalf.

	g.  17 October 1997, his immediate commander initiated separation action against him in accordance with paragraph 14-12b of AR 635-200.  His intermediate commander recommended approval. 

	h.  23 October 1997 - consistent with the chain of command recommendations, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of AR 635-200 and directed the issuance of a General Discharge Certificate.

	j.  7 November 1997, he was discharged from active duty under the provision of AR 635-200, chapter 14-12b (Misconduct - Pattern of Misconduct).  He completed 1 year, 7 months, and 25 days of active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded/authorized:

* Army Service Ribbon
* Overseas Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Marksman Marksmanship Qualification Badge with Grenade Bar

4.  By regulation (AR 15-185 (ABCMR)), the ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

5.  By regulation, Soldiers are subject to separation under the provisions of paragraph 14-12b of AR 635-200 for a pattern of misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier s overall record.

7.  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.  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.

8.  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 reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the short term of service prior to multiple occasions of misconduct occurring, the Board found that the characterization of service given at the time of discharge was appropriate.  

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.




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 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  An honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.

	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.  Paragraph 14-12b, in effect at the time, states members are subject to separation under this provision for a pattern of misconduct.  A pattern of misconduct consisting of one of the following (1) Discreditable involvement with civil or military authorities; or (2) 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, civil law, and time-honored customs and traditions of the Army.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is 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.

4.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.


ABCMR Record of Proceedings (cont)	 AR20160018496


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