ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:     19 April 2019

	DOCKET NUMBER:  AR20170001317


APPLICANT REQUESTS: an upgrade of his general, under honorable conditions 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), for the period ending 20 June 1994 and 23 January 2006
* DD Form 214 Worksheet 
* NGB Form 22 (Report of Separation and Record of Service) 

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 applicants states that he was chaptered out of the service for misconduct and received a separation code of JKA and a re-entry (RE) code 3 on 20 June 1994.  With a waiver from Army National Guard (ARNG), he reentered back into service from 17 July 2003 to 17 July 2008 with an honorable discharge characterization of service and an RE-code 1 stated on the NGB Form 22.  He served another combat tour in Operation Iraqi Freedom and received an Army Commendation Medal for the time of service.  He was promoted from private first class (PFC)/E3 to specialist (SPC)/E4 in the District of Columbia (DC) ARNG during his time of service.  He served a total of five years of service with the Maryland and the DC ARNG without any discrepancies or disciplinary reasons.  His ARNG honorable discharge was completed at expiration of term of service on 17 July 2008.  He is currently employed with the Department of Defense (DoD)/Department of the Army (DA) as a general schedule 12 Federal Civil Service Civilian with a security clearance and over 18 years of DoD civil service time on his current record. 


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

	a.  He enlisted in the Regular Army 27 December 1988.

	b.  He served in:

* Germany from 28 May 1989 to 13 September 1990
* Southwest Asia from 14 September 1990 to 24 March 1991
* Germany from 25 March 1991 to 16 February 1992

	c.  A DA Form 268 (Suspension of Favorable Actions) was initiated on 2 November 1993 for investigation.

	d.  He accepted nonjudicial punishment on/for:

* 24 November 1993, willfully striking his 3 month old son in the face, he was reduced to E-3 
* 7 April 1994, failing to pay his family support

	e.  On 2 May 1994, his immediate commander initiated action to separate him for misconduct, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), Chapter 14.  The commander indicated that the reasons for the proposed action was the applicant's discreditable conduct and conduct prejudicial to good order and discipline; child abuse; failure to pay family support; a pattern of misconduct and poor military performance.

	f.  On 11 May 1994, he was advised by his consulting counsel of the bases for the contemplating action to separate him for misconduct under AR 635-200, Chapter 14 and its effects; of the rights available to him; and the effects of any action taken by him in waiving his rights.  He understood if he had less than six years total of active and reserve military service at the time of separation and am being considered for separation for misconduct under AR 635-200, Chapter 14, he is not entitled to have his case heard by an administrative separation board.  

	 g.  On 11 May 1994, his immediate commander initiated separation action against him due to patterns of misconduct and poor military performance.  His chain of command recommended approval with the issuance of a general, under honorable conditions discharge.

	h.  On 23 May 1994, the separation authority approved the applicants discharge under the provisions of, AR 635-200, Chapter 14.  He further ordered the applicant's service be characterized as general, under honorable conditions

	i.  On 20 June 1994, he was discharged from active duty under the provisions of AR 635-200, Chapter 14.  His DD Form 214 shows he received a characterization of service of general, under honorable conditions.  He completed 5 years, 5 months, and 24 days of active service.  

	j.  After a break, he enlisted in the ARNG and entered active duty on 5 December 2004.  He served in Iraq from 19 January 2005 to 23 December 2005.  He was honorably released from active duty on 23 January 2006.

	k.  His NGB Form 22 shows he was honorably discharged on 16 July 2008 from the ARNG.

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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the serious misconduct within the record, the Board concluded that the characterization of service received at the time of discharge was appropriate.  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.  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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), 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 states 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.

	c.  Paragraph 3-7b states that 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.

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.

ABCMR Record of Proceedings (cont)	 AR20170001317


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