ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  20 June 2019

	DOCKET NUMBER:  AR20170004349


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 completed his first full term of service and was denied the Montgomery GI Bill, applying for disability and compensation with the veteran’s affairs.  

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

	a.  He enlisted in the Regular Army on 31 August 1990 for 4 years.  He reenlisted on 4 April 1994 for 3 years.  

	b.  He received eight counseling’s for various offenses to include failure to appear to appointed place of duty, returned checks, traffic and weapon violations, disobeying a lawful order and failure to appear and for driving on suspended license from 23 August 1994 to 28 March 1995.  

	c.  DA Form 3975 (Military Police Report), dated 8 November 1994 shows the applicant was charged with larceny, damage to private property, and false official statement offense on 10 October 1994 to 11 October 1994.  

	d.  Fourteen sworn statements taken by the military police investigation authority dated from 12 October 1994 to 25 October 1994 of the circumstances surrounding the incident of another Soldier’s vehicle being vandalized and property stolen by the applicant.  The Soldier that own the vehicle was joking around the night prior with the applicant and stated that if anybody ever done anything to his car, they would be doing him a favor.  Another Soldier was present doing this conversation.  The owner, after the destructions was upset and busted his own windows and admitted in his sworn statement, but he did not tell anybody else to take his tires or do anything to his car.  In part, the sworn statements stated that the vehicle was noticed in the parking lot with windows busted out, tires missing, the hub on the passenger side on the ground and the stereo deck missing.  In the applicant’s sworn statement he admitted to taking the tires off the vehicle and stated that the owner told to do this.  

	e.  On 24 October 1994, the military police authority, Fort Stewart, GA completed the DA Form 3881 (Rights Warning Procedure/Waiver Certificate) and advised the applicant of his rights to be questioned about the offense of illegally transferring of plates, no proof of registration or insurance, larceny of property, damage to private property and false swearing, as that he stated that he had broken another Soldier’s vehicle window.  The applicant waived his rights and was interviewed.  

	f.  The Municipal court Hinesville, Liberty County, GA vs. the applicant shows that the applicant was charge with violation of loud music, operating a vehicle on suspended license and insurance.  He failed to appear in court and on various scheduled dated.  On 10 May 1995 municipal court of Hinesville, GA order of sentence shows that the applicant was found guilty by the court.  The case was tried without a jury for the offenses of loud music, suspended license and insurance and failure to appear.  He waived representation by counsel, declined trial by jury, offered his plea of guilty freely and voluntarily with full understanding of all matters set forth in the accusation.  He was ordered to pay $2029 to report to jail on 10 May 1995 and remain until all fine was paid in full.  If fine were not paid he was to appear back before the court on 7 June 1995.  

	g.  The State of Court of Liberty County, GA amend versus the applicant shows that the applicant failed to appear and had 90 days to serve, suspended upon payment of fine $2483 ordered on 16 May 1995.  

	h.  The applicant underwent a mental evaluation on 22 March 1995, the examiner stated that he was psychiatrically cleared for any administrative action deemed necessary by command.  

	i.  He completed a medical examination on 30 March 1995, the examiner qualified him for separation.  

	j.  The applicant’s commander submitted a DA Form 4833 (Commander’s Report of Administrative Action) to the provost marshal, Fort Stewart, GA for failure to appear and explained the circumstances of disciplinary action taken.  The action taken listed as judicial civil offense on 3 May 1995.  

	k.  On 17 August 1995, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations) chapter 14, paragraph 14-12c, for the commission of a serious offense.  For failure to reports, disobeying a lawful order, writing bad checks, unregistered weapon on post, failure to appear for a civilian court date, driving on suspended license, no proof of insurance, various traffic violations, damage to private property, larceny of private property, to wit: a stereo and three car tires, and false official statement.  

	l.  On 25 August 1995, he acknowledged receipt of the notification of the separation action after consulting with legal counsel, he further acknowledged:

* the rights available to him and the effect of waiving said rights 
* he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him
* he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading
* ineligible to apply for enlistment in the U.S. Army for 2 years after discharge

	m.  Consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, chapter 14, paragraph 14-12c for the commission of a serious offense.  He would be issued a general under honorable discharge certificate.  

	n.  He was discharged from active duty on 19 September 1995 under the provisions of AR 635-200, chapter 14, paragraph 14-12c, misconduct, SPD JKQ, misconduct, commission of a serious offense.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that his service was characterized as under honorable conditions (general), he served 5 years and 19 days or active service. He had no lost time.  

4.  By regulation, members are subject to separation for commission of a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized.

5.  In reaching its determination, the Board can consider the applicants 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, the Board determined there is insufficient evidence to grant relief.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the pattern of misconduct, some of which involved serious, criminal misconduct, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.
However, the Board did note that the applicant had a prior period of honorable service which was not currently reflected on his DD Form 214 and recommended that be corrected to more accurately depict the applicant’s military service.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 31 August 1990 until 3 April 1994.”
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.
	 
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 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 -12c (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission of a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170004349


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