ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  14 May 2019

	DOCKET NUMBER:  AR20170002684


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

FACTS:

1.  The applicant states he was told by his first sergeant at the time, if he accepted the early out option the general discharge could be upgraded after he had been out of the Army for some period of time.  He was reduced in rank due to an altercation with a senior noncommissioned officer (NCO) that resulted in a shouting match.  There were no physical contact and the senior NCO altered his statement.  He has moved on with his life and was told this could be upgraded and he would like to use his Department of Veterans Affairs (VA) benefits to purchase a home.

2.  A review of the applicant’s records show:

     a.  He enlisted in the Regular Army on 8 April 1985.

     b.  He served at Fort Riley, Kansas, from 3 December 1985 to 6 August 1987.

     c.  He accepted nonjudicial punishment (NJP) on 1 June 1987 for being disrespectful in language toward an NCO.  His punishment included reduction to private first class.

     d.  On 9 June 1987, applicant completed a mental evaluation and met retention standards.

     e.  On 7 July 1987, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 12b, chapter 14, for a pattern of misconduct (failure to obey a lawful order, dereliction of duties, and receipt of a NJP).

     f.  He consulted with legal counsel on 7 July 1987 and subsequently acknowledge the commander’s intent to separate him under the provisions of the Army Regulation 635-200, chapter 14-12b.  He acknowledge he may expect to encounter substantial prejudice in civilian life because of a general under honorable conditions discharge.

     g.  Consistent with the chain of command recommendation, on 24 July 1987 the separation authority approved the request for discharge for a pattern of misconduct and ordered his service be characterized under honorable conditions (general). 

     h.  On 6 August 1987 he was discharged from active duty under the provisions of AR 635-200, chapter 14-12b with a general under honorable conditions characterization of service.  He had 2 years, 3 months and 29 days of active duty service.  He was awarded or authorized the Army Service Ribbon.

3.  By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is sufficient evidence to grant partial relief.  Based upon the minor misconduct found over a two year period of service, the Board concluded that showing clemency by upgrading the characterization of service to Honorable was appropriate.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Honorable.

	 
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) 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 is 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

     b.  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.   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)	 AR20170002684


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