ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 May 2019

	DOCKET NUMBER:  AR20170003359


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)
* Memorandum from Previous Unit First Sergeant (1SG) 

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, in effect, he feels the discharge is unjust.  He believes it was all a personal vendetta from a former noncommissioned officer supervisor.  He states that his first two disciplinary actions were from a different organization and should not have been a factor at his new unit.  The several incidents that occurred were all company level offenses and should have never elevated to a Chapter 14 discharge.  He was separated prior to a Medical Evaluation Board (MEB), and that he’s missed opportunities for employment because of his current discharge.  He is requesting an upgrade so that he can join another branch of the military.

3.  The applicant provides, a memorandum for record, dated 30 November 2001, which states the applicant’s commander had the intent of separating the applicant when he was informed that the applicant was pending a MEB for hearing loss.  The 1SG received notice that Military Occupational Specialty (MOS)/Medical Review Board (MMRB) was not required, so the command group began the process of separating the applicant.  While in the process of separation, the leadership received another notice of a pending MEB for heat stroke, and the 1SG recommended the applicant address his issues with the commander upon his return from temporary duty (TDY).  The 1SG addresses his attempt to retain the applicant, but the applicant failed to show for his final out-processing and was removed from the Army systems.  The 1SG states that the applicant married while being separated and was having financial difficulties.  After elevating the situation to the division command sergeant’s major office, the applicant’s issue remained the same.  He was instructed to continue out-processing because he was no longer in the system which also terminated the MEB.  The 1SG showed sympathy and takes responsibility for the applicant not being afforded the opportunity to complete the MEB process.

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

	a.  His DD Form 4 (Enlistment/Reenlistment Document) reflects that he enlisted on 4 November 1997 into the Regular Army (RA).

	b.  On 8 July 1998, utilizing DA Form 2627 (Summarized Record of Proceedings under Article 15), the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specification of wrongfully consuming alcohol while under the age of 21.

	c.  On 19 November 1999, the applicant received a letter of reprimand from his immediate commander for conduct unbecoming of a paratrooper and a Soldier (possible adulterous affair).

	d.  On 10 May 2001, utilizing DA Form 2627, the applicant accepted NJP under the provisions of Article 15 for one specification of disrespectful language towards a noncommissioned officer.  His punishment included a reduction to private first class/E-3.

	e.  On 1 August 2001, utilizing DA Form 2627, the applicant accepted NJP under the provisions of Article 15 for one specification of dereliction in performance of his duties.  His punishment included a reduction to private/E-2.

	f.  On 5 September 2001, the applicant's company commander notified him that action was being initiated to separate him under the provisions of AR 635-200, chapter 14, paragraph 14-12b for demonstration of an unbroken patterns of misconduct.  

	g.  On 5 September 2001, the applicant acknowledged receiving the notification of separation.  His record is void of his election of rights.

   h.  On 5 September 2001, the immediate commander formally initiated separation action against the applicant under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12 (Patterns of Misconduct).  The chain of command recommended separation with an under honorable conditions discharge.  

   i.  On 20 September 2001, following a legal review for legal sufficiency, the separation authority approved the request for discharge for patterns of misconduct and ordered his service be characterized as an under honorable conditions.
   	j.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that on 9 October 2001, 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 3 years, 11 months and 6 days of active duty service.  He was awarded or authorized:
   
* Army Service Ribbon
* Parachutist Badge
* Expert Marksmanship Badge with Recoilless Rifle Bar

5.  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.

6.  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 pattern of misconduct and a lack of medical records to show a medical condition warranting an MEB review, the Board concluded that the characterization of service received at the time of discharge was appropriate.

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) 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)	 AR20170003359


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