ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    6 May 2019

	DOCKET NUMBER:  AR20160019386


APPLICANT REQUESTS:  an upgrade of his general, under honorable conditions discharge.

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

	a.  He enlisted in the Regular Army on 20 July 1982.

	b.  He received nonjudicial punishment (NJP) on/for:

* 16 March 1984, for failing to go to his appointed place of duty 
* 3 May 1984, for violating a lawful general regulation
* 20 February 1985, for failing to obey a lawful regulation

c.  A bar to reenlistment was approved on 15 February 1985 for receiving NJP.

   d.  On 21 February 1985, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations) for unsatisfactory performance (poor military conduct, receiving an Article 15, and his disregard to authority). 

	e.  On 21 February 1985, he acknowledged receipt of notification of the separation action.  He further acknowledged:

* the rights available to him
* he may encounter substantial prejudice in civilian life if a general discharge, under other than honorable conditions is issued to him
* he may apply to the Army Discharge Review Board for an upgrade

   f.  On 21 February 1985, his immediate commander initiated action to separate him under the provisions of chapter 13, AR 635-200 for poor military conduct and flagrant disregard for authority.

	g.  On 12 March 1985, the separation authority approved the applicant’s discharge under the provisions of chapter 13, AR 635-200.  He would be transferred to the Individual Ready Reserve.

	h.  He was discharged from active duty on 25 March 1985 with a general, under honorable conditions characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 8 months, and 6 days of active service.  It also shows he was awarded or authorized:

* Army Service Ribbons
* Expert Marksmanship Qualification Badge with Rifle Bar

3.  By regulation, a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

4.  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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade request, the Board determined that relief was not warranted.  Based upon a pattern of misconduct displayed by the applicant over an extended period of time, as well as the characterization of service already received, the Board found no error or injustice which would warrant making a change to the characterization of service.


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 Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  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.  Chapter 13 of that regulation provides a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military 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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

ABCMR Record of Proceedings (cont)	 AR20160019386


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