ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  30 April 2019

	DOCKET NUMBER:  AR20170001676


APPLICANT REQUESTS:  an upgrade of his under honorable conditions to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 149 (Application for Correction of Military Record) 

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 went absent without leave because he felt that his daughter’s life was in danger.  His wife carried their newborn around drug houses and he felt it was his responsibility to protect his family.  He feels his discharge should be upgraded because he was trying to protect them. 

3.  A review of the applicant’s records shows:

	a.  He enlisted in the Regular Army on 3 February 1987.

	b.  On 20 July 1987, he accepted non-judicial punishment (NJP) for failure to be at his appointed place of duty.

	c.  On 2 December 1987, he accepted NJP for failure to be at his appointed place of duty. 

	d.  On 30 January 1988, he accepted NJP for failure to be at his appointed place of duty.  His included reduction to E-1, and extra duty and restriction.

	e.  On 6 February 1988, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation (AR) 635-200 (Personnel Separation), for unsatisfactory performance.  He cited the specific reason as: financial responsibility, continuous indebtedness, disrespectful conduct, and missing formations.

	f.  On 8 February 1988, the applicant acknowledged receipt of the commander’s notification.  He acknowledged: 

* he was advised of the basis for the contemplated separation action under provisions of chapter 13, AR 635-200
* he was advised of the effect on future enlistment in the Army, the possible effects of a general discharge under honorable conditions and the rights available to him
* he understood if he were issued a general discharge, he could expect encounter substantial prejudice in civilian life
* he elected not to submit a statement in his own behalf

	g.  On 9 February 1988, the chain of command recommended approval of separation. 

	h.  On 25 February 1988, the separation authority approved the applicant’s separation with a general, under honorable conditions characterization of service.  Accordingly, the applicant was discharged on 25 February 1988. 

	i.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 13 of AR 635-200 with an under honorable conditions (general) characterization of service.  He completed 1 year and 23 days of active service.  His DD 214 shows he was awarded or authorized:

* Army Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Badge with Hand Grenade Bar

4.  By regulation, a Soldier may be separated per this when it is determined that he is unqualified for further military service because of unsatisfactory performance. 

5.  In reaching its determination, the Board can consider the applicants’ petition in his service record in accordance with 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 pattern of misconduct over a short term of service, 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 635-200 (Personnel Separations - Enlisted Personnel), 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 Soldier’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.  Paragraph 3-7b (General discharge) states 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 13-1 states a Soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. 

	d.  Paragraph 13-2 commanders will separate a Soldier for unsatisfactory performance when it is clearly established that it is likely that the circumstances forming the basis for initiation of separation proceedings will continue to recur and the retention would impact on military discipline, good order, and morale.  

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)	 AR20170001676


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