ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 May 2019 DOCKET NUMBER: AR20170000231 APPLICANT REQUESTS: An upgrade of his general, under honorable condition discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • DD Form 214 (Certificate of Release or Discharge From Active Duty • DA Form 4856 (General Counseling Form) 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 he doesn’t want a general discharge to haunt him for the rest of his civilian career. His entire military service should not be defined by one mistake while he was young. 3. A review of the applicant’s service records shows the following: a. On 3 September 1996, he enlisted into the Regular Army. b. On 30 August 1999, his immediate commander notified him that he intended to initiate action to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14-12b (Patterns of Misconduct) for repeated patterns of being absent without leave (AWOL) and failing to be at his appointed place of duty. c. On 30 August 1999, he was advised by his consulting counsel of the basis for the contemplated action to separate him for a pattern of misconduct under AR 635-200. Chapter 14-12b and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He understood that if he had less than six years total of active and reserve military service at the time of separation and is being considered for separation for reason of misconduct under AR 635-200, Chapter 14, he is not entitled to have his case heard by an administrative separation board unless he is being considered for a discharge under other than honorable conditions. d. His immediate commander forwarded the initiated separation action against him due to patterns of misconduct to the next higher command. His chain of command recommended a general discharge. e. Consistent with the chain of command’s recommendations, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 14-12b. f. On 7 October 1999, he was discharged from active duty with a general, under honorable conditions discharge under AR 635-200, Chapter 14-12b. His DD Form 214 shows he received a characterization of service of general, under honorable conditions. He completed 3 years and 24 days of active service with lost time from 1 to 3 December 1997 and 12 to 19 April 1999. It also shows he was awarded or authorized the Army Service Ribbon. 4. By regulation, action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, Chapter 14-12b. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the multiple UCMJ violations and the applicant already receiving an Under Honorable Conditions (General) discharge certificate, the Board concluded that the characterization of service received was fair and just, that no error or injustice was present which would warrant correcting the record. 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. Microsoft Office Signature Line... 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), in effect at the time, sets forth the basic authority for separation of enlisted personnel. a. Chapter 3-7a (Honorable Discharge) 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 clearly inappropriate. b. Chapter 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 states action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, Chapter 14-12b. 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.