ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	BOARD DATE:  22 May 2019

	DOCKET NUMBER:  AR20160019188


APPLICANT REQUESTS:  correction of his narrative reason for separation.  
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2166-8 ( Non Commissioned Officer Evaluation Report )
* DD Form 2707-1 (Department of Defense Report of Result of Trial)

FACTS:

1.  The applicant states he served with the Army for almost 6 years.  During his time in service, he was rapidly promoted and held leadership positions as an E-4.  He never had any infractions but the one that ended his military career.  He is asking the Board panel to consider his request to change his reason for separation.  He included documents that will show the Board of his excellent service record prior to his infractions and special court martial.

2.  He provides his Noncommissioned Officer Evaluation report for the rating period 1 July 2011 through 30 June 2012 showing a rating of Among the Best and Superior.  

3.  A review of the applicant record shows:

   a.  He enlisted in the Regular Army 22 October 2008.

   b.  He Served in Iraq from 2 June 2011 to 6 December 2011.

   c.  On 29 April 2015, the applicant was convicted by a special court-martial of 

* one specification of absenting himself from his unit without authority from 21 October 2014 to 30 October 2014
* one specification of making a false official statement with intent to deceive
* one specification of wrongfully having sexual intercourse with a woman not his wife on 1 September 2013 and 14 October 2014
* one specification of misusing a government travel card on or about 11 October and on or about 21 October violate a lawful general regulation
* one specification near Saipan, Northern Mariana islands, between on or about 21 October 2014 and on or about 30 October violate a lawful general regulation misusing a government travel card
* one specification on an United Airlines flight between the Island of Oahu, Hawaii and Saipan, Northern Mariana Islands on or about 21 October 2014, violate a lawful general regulation by misusing a government travel card

   d.  The court sentenced him to reduction to E-3, forfeiture of $1,300 pay per month for two months, and conferment for 150 days, and hard labor for 60 days.  The convening authority approved the sentence on 29 April 2015.

   e.  On 29 April 2015, his immediate commander initiated action to separate him for misconduct, under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14.  The commander indicated that the reasons for the proposed action was the applicant was found guilty at his Special Court Martial.

   f.  The complete facts and circumstances surrounding the applicant’s meeting with counsel are not available to review. 

   g.  On 29 April 2015 his immediate commander initiated separation action against him due to patterns of misconduct and, recommended a general, under honorable conditions discharge.

   h.  On 30 April 2015, the separation authority approved the applicants discharge under the provisions of, AR 635-200, Chapter 14-2.  He further ordered the applicant's service be characterized as general, under honorable conditions.

   i.  On 29 May 2015, he was discharged from active duty under the provisions of AR 635-200, Chapter 14-2.  His DD Form 214 shows he received a characterization of service of general, under honorable conditions and a separation code of JKQ.  He completed 6 years, 7 months, and 1 day of active service.  It also shows and he was awarded or authorized:

* item 25 (Separation Authority) – Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) chapter 14-2
* item 26 (Separation Code) – JKQ
* item 27 (RE Code) – 3
* item 28 (Narrative Reason for Separation) – Misconduct (Serious Offense) 

	j.  His DD Form 214 further show she was awarded or authorized: 

* Army Commendation Medal (3rd Award)
* Army Achievement Medal
* Meritorious Unit Commendation
* Army Superior Unit Award
* Army Good conduct Medal (2nd Award)
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Iraq Campaign Medal

	k.  On 17 October, 2016, the Army Discharge Review Board reviewed his discharge and determined that he was properly discharged.  His request for a change in the type and nature of his discharge was denied.

4.  By regulation, action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier, further effort is unlikely to succeed.

5.  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 a review of the documentary evidence presented by the applicant and found in the military service record, the Board concluded that the narrative reason currently on the applicant’s DD Form 214 accurately depicts the circumstances leading to discharge.  For that reason, the Board recommended denying the applicant’s request for relief.

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.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b.  Paragraph 3-7a, provides that 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.

2.  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.

ABCMR Record of Proceedings (cont)	 AR20160019188


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